What if a claimant is unsuccessful at their refugee protection hearing?

Question: 
What if a claimant is unsuccessful at their refugee protection hearing?
Answer: 

This answer is taken from CLEO's On the Radar - July 2013.

Appeals to the new Refugee Appeal Division

If refugee claimants aren't successful at their hearings, they may be able to appeal to the Refugee Appeal Division of the Immigration and Refugee Board. This month, On the Radar highlights some key information about appeals.

Claimants need to get legal help

The appeal process is complicated.

If the Refugee Protection Division refuses a claim, the claimant should try to get legal help right away. There is a 15-day deadline for filing a Notice of Appeal with the Refugee Appeal Division.

Not all claimants can appeal

For example, claimants do not have the right to appeal if they:

  • withdrew or abandoned their claim
  • came to Canada from a safe third country. For now, this applies only to claimants who enter Canada from the United States. It's not yet clear whether the rule applies to all claimants who travelled to Canada from the United States, or only to those who made their claims at the land border between the two countries.

When a claimant doesn't have the right to appeal, they may be able to apply to the Federal Court to ask for a judicial review.

How appeals are decided

The Refugee Appeal Division (RAD) reviews the documents that the claimant files and usually makes a decision without a hearing. The documents include the required forms, any evidence, and written arguments.

The RAD can decide to have a hearing if the evidence:

  • raises a serious issue about the claimant's credibility,
  • is central to the decision about the claim, and
  • if accepted, would justify allowing or rejecting the person's claim.

If the Minister gets involved

The Minister of Citizenship and Immigration has the right to "intervene" on an appeal by a refused claimant. This can happen at any time before the RAD makes a decision. If the Minister intervenes, the claimant has the right to comment on the Minister's arguments.

Time limits

To start the appeal, a claimant must file three copies of the Notice of Appeal with the RAD. They must do this no later than 15 days after they get the reasons in writing for the Refugee Protection Division's decision.

This is only the first step and it's important to follow all the rules about documents and time limits. There are also rules about how to apply for an extension if a claimant misses a time limit.

Possible outcomes of an appeal

The RAD can do one of three things:

  1. confirm the decision of the Refugee Protection Division (RPD)
  2. set aside the RPD's decision and make its own decision
  3. send the claim back to the RPD

If the RAD confirms the decision of the RPD, the claimant may be able to apply to the Federal Court to ask for a judicial review. It's important to get get legal help when applying to the Federal Court.

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