What will happen at the Refugee Hearing?
Claims are decided by an independent tribunal called the Immigration Refugee Board (IRB). A Member of the IRB will hear your claim in a quasi-judicial hearing and decide whether you meet the definition of a Convention Refugee or a person in need of protection. Typically, the Member will ask you questions about the events that have happened to you and your family in your home country. If you are represented by counsel, your counsel may ask you questions about your refugee claim.
The Member will need to be satisfied that your identity has been proven, that you are credible, that you face a risk in all parts of your country, and that the police or government in your country is unwilling or unable to protect you.
What if Refugee claim is refused, what are the options?
If your refugee claim is rejected, you may have a right to appeal that refusal to the Refugee Appeal Division or to have the decision reviewed at the Federal Court of Canada.
If your claim for refugee status is rejected, and you have decided not to appeal or exhausted all appeal options, you may be removed from Canada or receive a deportation or removal order.
Choosing a competent professional for your refugee claim brings a wealth of expertise and dedication to your side. The firm’s experienced legal professionals understand the intricacies of refugee claims in Canada, offering tailored support to navigate the complex asylum process. We are committed to providing personalized and comprehensive assistance, ensuring that your case is diligently prepared and presented. Please contact us if you have questions about the refugee claim application process, or would like to explore your options.
Refugee Appeals
Have you applied for a refugee claim, but have it rejected, we can help you appeal a Refugee Protection Division (RPD) decision to the Refugee Appeal Division (RAD). The appeal can be made if a mistake has been made as to question of fact, of law, or of mixed fact and law.
How to Appeal a decision made by the RPD?
This is a two-step process:
- Applicant must file a Notice of Appeal with the RAD no later than 15 days after the written reasons for the negative decision of the RPD was received.
- Applicant must perfect the appeal by providing the Appellant’s record to the RAD registry no later than 45 days after the Applicant has received the negative written reasons for the RPD decision.
Note: Appeals to the RAD will not accept new evidence unless it did not exist or was not available at the time the RPD made their decision. RAD usually makes the decisions based on the information provided and will not hold an oral hearing. However, sometimes the RAD will allow an oral hearing to take place when there is an issue regarding the credibility of an Appellant.
The RAD after deciding on the Applicant’s appeal can either:
- Dismiss the appeal
- Allow the appeal and send it back to RPD for redetermination
- Allow the appeal and substitute new reasons for the decision
Applicants that CANNOT Appeal to the RAD
- Designated foreign national
- If Applicant withdrew or abandoned their refugee protection claim
- The Minister made a decision that ceases the Applicant’s refugee protection claim and the RPD decided to allow or reject that application
- The Applicant’s claim for refugee protection was rejected as per Article 1F(b) of the Refugee Convention because there was an order of surrender under the Extradition Act
- Applicant made their claim at the land border with the United States of America and the claim was referred to the RPD as an exception to the Safe Third Country Agreement
- The Applicant’s claim is not considered to have credible basis by the RPD
- The RPD decides that the Applicant’s claim is manifestly unfounded
What happens if the Appeal is dismissed by RAD?
If the RAD decides adversely in the appeal, the Applicant can further appeal to the Federal Court of Canada within 15 days of receiving the decision. We will help you throughout the process.
Federal Court Appeals:
Majority of the decisions made by the Immigration, citizenship or refugee authorities can be challenged by applying for a Judicial Review in the Federal Court of Canada. When this happens, a Federal Court will review the decision to decide whether the decision waslawfully made and can overturn the decision if they find a legal error.
Judicial Review Procedure:
Applications for leave and for judicial review to the Federal Court must be made within 15 days of refusal made in Canada, or 60 days of a refusal made outside Canada.
An application for leave and for judicial review is a two-step process:
- The Court will review the submissions in writing and decide whether to allow a “leave” for a hearing. If the Court is convinced that the Applicant has a case that might be successful, they will grant the leave. If the Court is not convinced that the case has any merit, they will dismiss the appeal without reasons
- Once the leave has been granted, the Court will set a date for hearing of the application for judicial review/ provides timeline for production of the tribunal record and filing by parties of any additional documents. The hearing will give the Applicant or their counsel a chance to present their legal arguments orally before a judge. The Immigration department will have an opposing counsel who will argue that the case should be dismissed. The Judge will render his decision once the hearing has been
completed and decide whether the application is granted or not.
Issues the Court Considers when deciding on a Federal Court Appeal
When deciding on an appeal in the Federal Court, the reasonableness and fairness of an administrative decision are generally what the Court will consider and whether the decision was made in accordance with the law. When the court finds a reviewable error, it will overturn the decision and return the case to the tribunal to be re-determined by a different decision maker. The Court may not consider new evidence and will likely base their decision on the evidence that was actually before the lower tribunal. The court will consider whether the decision was reasonable and made using a fair procedure which determines whether the decision of the lower decision maker will be overturned.
Further Appeals:
Sometimes, the Federal Court judicial review is unsuccessful which will have an applicant wonder what the next steps would be. A Federal Court of Appeal will require a Federal Court Judge to certify a question of general importance in their decision for the Court of Appeal to consider. Since these considerations will only be certified if it relates to a novel legal issue, only a rare number of cases have been successful to appeal to the Federal Court of Appeal. The standard of review is an overriding error for factual findings and correctness for issues of law. A decision of the Federal Court of Appeal can further be appealed to the Supreme Court of Canada. A certified question is not required to make an appeal; however, an Applicant must obtain a leave before an appeal can be made. There must be a palpable existence of a legal issue of national importance.
A decision of the Federal Court of Appeal can further be appealed to the Supreme Court of Canada.
