Refugee Appeal Division (RAD) Appeals

A refusal from the Refugee Protection Division (RPD) can be devastating for a claimant, but the Refugee Appeal Division (RAD) offers a crucial second chance. The RAD provides a paper-based appeal process that reviews the RPD decision for errors in fact, law, or procedural fairness. In certain cases, the RAD may also accept new evidence that was not reasonably available at the time of the RPD hearing. A successful RAD appeal can overturn a negative decision, grant protection outright, or order a new hearing. Because the RAD applies a deferential yet critical standard of review, success depends on precise legal argument, careful evidence analysis, and strategic presentation.

Let's have a detailed, lawyer-level guide to RAD appeals, including eligibility, legal tests, how to draft compelling appeal submissions, use of new evidence, timelines, stay of removal requests, and Federal Court options if RAD dismisses the appeal. It is intended for refugee claimants, lawyers, NGOs, and advocates navigating the post-hearing stages of the refugee protection system.

Legal Framework

The RAD operates under:

• IRPA ss. 110–113,
• RAD Rules (IRB),
• Federal Court jurisprudence,
• UNHCR guidelines (persuasive authority).

Who Can Appeal to the RAD?

Most claimants with a negative RPD decision may appeal, except:

• claimants from a Designated Country of Origin (DCO) (if the regime applies),
• manifestly unfounded claims (MUC),
• claims with no credible basis (NCB) findings,
• claims declared abandoned,
• Minister’s appeals against a positive RPD decision.

Those who cannot appeal may seek judicial review at the Federal Court.

Time Limits

RAD timelines are strict:

• 15 days to file Notice of Appeal,
• 30 days to file full Appellant’s Record with legal submissions.

Late filings are rarely accepted.

The Scope of RAD Review

RAD assesses whether the RPD decision contained:

• errors of fact,
• errors of law,
• errors of mixed fact and law,
• procedural unfairness.

Errors must be material—affecting the outcome of the case.

Common Grounds for Successful RAD Appeals

1. Incorrect Credibility Findings

• RPD Member ignored relevant evidence,
• inconsistencies were minor or explained,
• credibility findings based on speculation,
• Member misinterpreted the BOC or testimony.

2. Misinterpretation of Country Conditions

• Member relied on outdated evidence,
• failed to consider objective risk,
• used irrelevant or selective COI.

3. Errors Regarding Internal Flight Alternative (IFA)

• Member found IFA available without proof of safety,
• ignored claimant’s personal circumstances,
• misapplied legal test for reasonableness.

4. State Protection Errors

• Member assumed state protection exists without evidence,
• ignored documented failures by police or courts,
• misapplied presumption of protection.

5. Procedural Fairness Breaches

• Member relied on undisclosed evidence,
• did not give claimant opportunity to explain contradictions,
• interrupted or rushed testimony.

Submitting New Evidence to the RAD

New evidence is allowed if it:

• was not reasonably available at the time of the RPD hearing,
• is material and credible,
• could change the outcome.

Valid examples include:

• new threats or attacks after the hearing,
• new country reports,
• fresh expert opinions,
• documents acquired after the hearing despite reasonable efforts.

The RAD Appellant’s Record

A strong Record includes:

• Notice of Appeal,
• Appellant’s submissions (legal arguments),
• transcript excerpts (if provided),
• RPD Record references,
• new evidence (if applicable),
• case law authorities.

Legal Standards in RAD Decision-Making

RAD applies:

• correctness for legal questions,
• reasonableness for factual findings,
• mixed correctness/reasonableness for hybrid issues.

Possible RAD Outcomes

1. RAD Allows the Appeal and Grants Protection

The best outcome. The RAD substitutes its own decision for the RPD’s.

2. RAD Orders a New RPD Hearing

Common when credibility must be reassessed or evidence needs oral testing.

3. RAD Dismisses the Appeal

Claimant may pursue Federal Court judicial review.

If Removal Is Imminent: Stay Motions

If CBSA schedules removal before RAD decides, counsel may file:

• an urgent stay motion at Federal Court,
• supporting affidavits,
• risk evidence,
• hardship and irreparable harm submissions.

Federal Court After RAD Refusal

Federal Court reviews whether RAD acted unreasonably. Common errors include:

• failing to engage with key evidence,
• misapplying legal principles,
• ignoring expert reports,
• inadequate reasons.

High-Risk Profiles for RAD Refusal

• claims relying solely on generalized violence,
• weak credibility evidence,
• lack of corroboration,
• inconsistent timelines,
• claims with internal relocation possibilities.

Role of Skilled Counsel

Counsel is essential for:

• identifying legal errors,
• drafting persuasive submissions,
• structuring appeal records,
• introducing new evidence properly,
• preparing stay motions,
• pursuing Federal Court judicial review.

A RAD appeal is a critical safeguard for refugee claimants. Effective legal strategy and precise advocacy significantly increase the likelihood of overturning a negative RPD decision and securing protection in Canada.