Refugee Appeal Divsion

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Refugee Appeal Divsion

• Peter Edelmann

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• Pursuant to s.111(1) of IRPA, the RAD shall
• (a) confirm the determination of the Refugee
  Protection Division
• (b) set aside the determination and substitute a
  determination that, in its opinion, should have
  been made or
• (c) refer the matter to the Refugee Protection
  Division for re-determination, giving the
  directions to the Refugee Protection Division
  that it considers appropriate.

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Eligibility date

• PCISA 36. (1) A decision made by the Refugee
  Protection Division in respect of a claim for
  refugee protection that was referred to that
  Division before the day on which this section
  comes into force is not subject to appeal to the
  Refugee Appeal Division.

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CIC Statement

• Note It was never the Governments intention to
  have the new Refugee Appeal Division (RAD) come
  into effect before the new asylum system started
  on December 15, 2012. As this remains the intent,
  we are working to correct a drafting error in the
  legislation that some have claimed could be
  interpreted to inadvertently allow some
  claimants, whose asylum claims were referred to
  the Immigration and Refugee Board of Canada on or
  after August 15, 2012, to appeal to the new RAD
  following a decision on their asylum claim.

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Ineligible claimants

• the claimant is a designated foreign national
  A110(2)(a)
• there is a determination that the claim was
  withdrawn or abandoned A110(2)(b)
• the claim is found to have no credible basis or
  be manifestly unfounded A110(2)(c)
• the claim would have been ineligible but for an
  exception to the Safe Third Country Agreement
  A110(2)(d)

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• on the day the decision was made, the claimant
  was national of a designated country of origin
  A110(2)(d.1)
• the decision is on a cessation or vacation
  application A110(2)(e) and (f)
• the claim was referred prior to the new
  provisions coming into force
• the claim is deemed rejected because an order of
  surrender for extradition was issued under the
  Extradition Act A105(4)

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Notice of Appeal

• R159.91 notice to be filed 15 days from date of
  written decision of RPD
• Does not need to be served on Minister (note that
  reply does have to be served)
• Served in same registry as RPD decision being
  appealed

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Perfecting the Appeal

• 30 days to file appellants record (documents,
  memorandum, etc.)
• Rule 3(3)(b) all or part of a transcript for any
  portions of the hearing on which the Appellant
  wishes to rely.
• Rule 3(3)(g)(ii) indicates that the memorandum
  can refer either to a transcript or to any audio
  or other electronic recording

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Ministers intervention

• The Minister can file a notice, intervention
  record and further documents at any time IRPR
  s.171(a.1) and (a.2) Rule 4(1)
• Appellant has 15 days to file reply

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Ministers appeal

• Timelines established in regs for Minister 15
  days for notice, 30 days to perfect.
• Unclear whether subject to general exception
• A110 (1.1) The Minister may satisfy any
  requirement respecting the manner in which an
  appeal is filed and perfected by submitting a
  notice of appeal and any supporting documents.

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Extensions of time

• Extension for notice or appellants record
• Can not be requested in advance, as the notice or
  2 copies of the appellants record must be filed
  with the application
• Extension of time to respond to a Ministers
  appeal can be requested in advance - Rule
  10(6)(b) starts 15 days from date of extension
  decision.

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Extensions of time - factors

• (a) whether the application was made in a timely
  manner and the justification for any delay
• (b) whether there is an arguable case
• (c) prejudice to the Minister, if the application
  was granted and
• (d) the nature and complexity of the appeal.

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Evidence

• 110 (4) On appeal, the person who is the subject
  of the appeal may present only evidence that
  arose after the rejection of their claim or that
  was not reasonably available, or that the person
  could not reasonably have been expected in the
  circumstances to have presented, at the time of
  the rejection.

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• Rule 3(3) The appellants record must contain
• (c) any documents that the Refugee Protection
  Division refused to accept as evidence, during or
  after the hearing, if the appellant wants to rely
  on the documents in the appeal

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Standard of Review

• 111(1) (b) set aside the determination and
  substitute a determination that, in its opinion,
  should have been made

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Hearings

• 110 (6) The Refugee Appeal Division may hold a
  hearing if, in its opinion, there is documentary
  evidence referred to in subsection (3)
• (a) that raises a serious issue with respect to
  the credibility of the person who is the subject
  of the appeal
• (b) that is central to the decision with respect
  to the refugee protection claim and
• (c) that, if accepted, would justify allowing or
  rejecting the refugee protection claim.

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Three Member Panels

• IRPA 171(c) a decision of a panel of three
  members of the Refugee Appeal Division has, for
  the Refugee Protection Division and for a panel
  of one member of the Refugee Appeal Division, the
  same precedential value as a decision of an
  appeal court has for a trial court.

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Judicial Review

• Must exhaust appeal rights before going to FC
• Minister may judicially review even if did not
  intervene at RPD or RAD
• R231 stays would apply in majority of cases

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Questions or comments

• peter_at_edelmann.ca