Refugee Appeal Divsion

1. Refugee Appeal Divsion Peter Edelmann

2. 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.

3. 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.

4. CIC Statement Note: It was never the Government’s 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.

5. 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claimants • the claimant is a designated foreign national [A110(2)(a)] • there is a determination that the claim was withdrawn or abandoned [A110(2)(b)] • the claim is found to have no credible basis or be manifestly unfounded [A110(2)(c)] • the claim would have been ineligible but for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)]

6. 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)]

7. 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

8. Perfecting the Appeal • 30 days to file appellant’s 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”

9. Minister’s 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

10. Minister’s 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.

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

12. 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.

13. 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.

14. Rule 3(3) The appellant’s 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;

15. Standard of Review 111(1) (b) set aside the determination and substitute a determination that, in its opinion, should have been made;

16. 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.

17. 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.

18. 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

19. Questions or comments peter@edelmann.ca