Understanding the refugee appeal process

​​​​​The Refugee Appeal Division (RAD) considers appeals of decisions made by the Refugee Protection Division (RPD) to allow or reject claims for refugee protection.

The RAD hears 2 kinds of appeals:

  • Appeals from refugee claimants – Your refugee claim was denied by the RPD, and you want to appeal. The Minister may decide to intervene in your case and oppose your appeal.
  • Minister's appeals – Your refugee claim was approved by the RPD, and the Minister's appealing that decision. You have the right to respond and file documents.

You should know

A decision-maker called a RAD member decides both types of appeals.

On this page

Your refugee claim was denied by the RPD

If you received your refugee claim decision from the RPD and don't agree with it, you can appeal to the RAD unless your claim falls into one of the categories below.

You can't appeal the RPD decision to reject your refugee protection claim if:

  • you're 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  • your refugee protection claim was withdrawn or abandoned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 end your refugee protection, and the RPD decision allowed or rejected that application
  • the Minister made an application to cancel the decision to allow your refugee protection claim, and the RPD decision allowed or rejected that application
  • 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

You should know

If you file an appeal with the RAD, you're the appellant. If the Minister decides to participate in your appeal, the Minister's the intervener.

The refugee appeal process at a glance

  1. RPD makes a decision that you don't like
  2. If you're eligible to appeal, you tell the RAD you want to appeal by filing a notice of appeal
    1. You have 15 days from when you received the RPD's decision
  3. You send the RAD your appellant's record
    1. You have 45 days from the time you received the RPD's decision
    2. You can provide new evidence
  4. The Minister may oppose your appeal
    1. You will receive a notice of intervention and an intervention record
  5. You can reply to the Minister's documents
    1. You have 15 days to reply
  6. The RAD member will make a decision
    1. The RAD's expected to make its decision no more than 90 days after it has all the necessary information
    2. If there's a hearing, the RAD will make its decision as soon as possible after the hearing
  7. You'll receive 1 of 3 possible decisions from the RAD:
    1. Your appeal's allowed
      1. The Minister may try to file an appeal with the Federal Court
    2. Your appeal's rejected
      1. You can try to file an appeal with the Federal Court
    3. The RAD orders a new hearing at the RPD
      1. The RAD will give the RPD certain directions to follow
      2. The RPD will let you know about next steps

Your refuge​e claim was approved by the RPD, and the Minister's appealing that decision

If you were granted refugee protection by the RPD, and Immigration, Refugees, and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA) questions that decision, they will appeal to the RAD.

This is called a Minister's Appeal. 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 based on the documents the Minister provides and the RPD record.

When the Minister can't appeal to the RAD

The Minister can't appeal the RPD decision to grant you refugee protection if:

  • you're 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
  • your claim was referred to the RPD before the relevant provisions of the new system came into force in December 2012
  • The Minister can't show that there were mistakes in the RPD's decision. These mistakes can be about:
    • the law
    • the facts
    • both

The RAD will decide whether to confirm or change the RPD decision. The RAD may decide to send the case back to the RPD for re-determination. In this case, the RAD will give directions to the RPD that it considers appropriate.

You should know

In a Minister's appeal, the Minister's the appellant, and you're the respondent.

Minister's appeal process at a glance

  1. RPD makes a decision that IRCC or the CBSA doesn't like
  2. The Minister tells you and the RAD they want to appeal by filing a notice of appeal
    1. They have 15 days from when they received the RPD's decision
  3. The Minister sends you and the RAD any supporting documents
    1. This might include an appellant's record
    2. They have 45 days from the time they received the RPD's decision
    3. Once you have all the supporting documents, you must decide if you want to respond
  4. If you decide to respond to the Minister's appeal
    1. You have 15 days to respond
    2. Send the Minister and the RAD a notice of intent to respond and respondent's record
    3. You can ask for more time
  5. The Minister can reply to your response
    1. The Minister will send you and the RAD their reply
    2. The Minister can send additional documents right up until the RAD makes its decision
    3. You'll have 15 days to reply
  6. The RAD member will make a decision
    1. The RAD's expected to make its decision no more than 90 days after it has all the necessary information
    2. If there's a hearing, the RAD will make its decision as soon as possible after the hearing
  7. You and the Minister will receive 1 of 3 possible decisions from the RAD:
    1. The appeal is allowed
      1. Refugee protection in Canada is denied to you
      2. You can try to file an appeal with the Federal Court
    2. The appeal is rejected
      1. RAD agrees with the RPD's decision to give you refugee protection
      2. The Minister can try to file an appeal with the Federal Court
    3. The RAD orders a new hearing at the RPD
      1. The RAD will give the RPD certain directions to follow
      2. The RPD will let you know about next steps

Representation at the RAD

You're not required to have counsel represent you when you file an 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're responsible for meeting all time limits.

Who can represent you

If your counsel is charging you a fee or receiving other payment, 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
  • an immigration consultant who is a member in good standing of the College of Immigration and Citizenship Consultants​

If your counsel isn't 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 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.

Designated representatives

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

In the case of children under 18 years old, the designated representative's 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 appeal is finished. However, you can ask the RAD to change your designated representative.

If you didn't 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.

Official languages used in your appeal

Canada has 2 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
  • a statement that the translation is accurate, signed by the translator

Hearings at the RAD

In most cases, the RAD doesn't hold a hearing. The RAD usually makes its decision using the information in the documents that you and the Minister provide. The RAD also uses the information that was considered by the RPD decision-maker. If the Minister believes that there should be a hearing, they'll 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. If the member decides that a hearing's needed, you and the Minister will receive notices to appear for a hearing.

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

Learn more about Hearings at the IRB and how you can request a virtual hearing held at an IRB office or an in-person hearing.​

Why the RAD might order 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 Immigration and Refugee Protection Act​​ (IRPA). In other words, a hearing may be held if there's evidence that:

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

How you'll know that a hearing has been ordered

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.

Terms and definitions in the refugee appeal process

Abandoned appeal

An appeal may be declared abandoned by the appellant for several reasons. For example, they:

  • didn't attend a hearing
  • failed to provide the RAD with information required by the RAD
  • failed to communicate with the RAD when asked to do so
Appeal

The process of asking a higher tribunal (the RAD) to review a decision made by a lower tribunal (the RPD).

Appellant

The person who wants the RAD to review the RPD decision.

Appellant's record

The main document filed by the appellant. Rule 3 of the RAD Rules explains what needs to be in the appellant's record.

Canada Border Services Agency (CBSA)

The department that provides integrated border services that support Canada's national security priorities. It refers refugee protection claims to the IRB made at airports, seaports, and Canada-United States border crossings.

Immigration, Refugees and Citizenship Canada (IRCC)

The department with overall responsibility for immigration and refugee policies in Canada. It refers refugee protection claims to the IRB made inside Canada.

Designated foreign national

A person who's part of a group that the Minister identified as an “irregular arrival”.

Intervention

When the Minister decides to intervene and becomes a party in the appeal. A representative from CBSA or IRCC (Minister's counsel) represents the Minister before the RAD.

Intervention record

Record that may contain 1 or more documents that the Minister wants to use to show that the RPD decision shouldn't be changed.

Immigration and Refugee Protection Act (IRPA)

Canada's law about immigration and refugee matters.

Member

The RAD decision-maker who decides your appeal.

Minister

The Minister's represented by an officer (Minister's counsel) from either CBSA or IRCC.

Notice of appeal

The document that starts the appeal process.

Notice to appear

The document that tells you that a hearing's going to be held. It shows the date and time of the hearing, as well as where the hearing will be held.

Notice of intervention

The document provided by the Minister that tells you the Minister's participating in your appeal. This makes the Minister a party to your appeal.

Party

The people participating in the appeal. If you file the appeal, you'll be called the appellant, and if the Minister intervenes, the Minister will be called the intervener. Both of you will then be parties to the appeal.

Perfected appeal

An appeal is considered perfected when the appellant's record is filed on time and in accordance with the RAD Rules and the ​Immigration and Refugee Protection Regulations (IRPR)​.

Person subject of the appeal

You, the person who claimed refugee status at the RPD.

Refugee Appeal Division (RAD)

The division of the IRB that decides appeals from decisions made by the RPD.

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.

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.

W​ithdrawal

The process of asking the RAD to stop your appeal before it's made a decision.