If you’ve received a negative decision from the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada, it can be a disheartening experience. However, the Canadian legal system offers avenues for review and appeal. Here’s an overview of how each body assesses decisions, from the Refugee Appeal Division (RAD) to the Federal Court.

1. Refugee Appeal Division (RAD)

Role and Assessment

The Refugee Appeal Division (RAD) reviews decisions made by the Refugee Protection Division (RPD) to ensure they were reasonable and fair. The RAD evaluates whether the RPD correctly applied the law and followed due process. It examines the evidence presented during the initial hearing and considers any potential errors in fact or law. The RAD aims to provide an additional layer of scrutiny to ensure that refugee claimants receive a just and equitable decision.

The RAD may also consider new evidence that was not reasonably available at the time of the RPD hearing, especially if it significantly impacts the claim. By doing so, it provides claimants with an opportunity to address potential oversights or changes in their circumstances.

Outcomes

• If the RAD determines that the RPD’s decision was flawed, it can overturn the decision and grant refugee protection.
• Alternatively, the RAD may uphold the original decision if it finds that the RPD’s ruling was reasonable and procedurally sound.

2. Judicial Review at the Federal Court

Role and Assessment

The Federal Court’s role is to review the decisions of the RPD and RAD to ensure they comply with Canadian law and principles of procedural fairness. Unlike the RAD, the Federal Court does not re-evaluate the evidence or reassess the merits of the refugee claim. Instead, it focuses on identifying legal or procedural errors that may have affected the outcome of the case.

The Court examines whether the decision-making process was fair and whether the decision itself was reasonable based on the evidence available at the time. This includes reviewing whether the decision-makers considered all relevant factors, avoided bias, and provided adequate reasons for their conclusions.

Outcomes

• If the Federal Court identifies a legal or procedural error, it can set aside the decision and refer the case back to the RPD or RAD for re-determination.
• If no errors are found, the Federal Court upholds the original decision.

Conclusion

Each stage in the appeal process—from the RAD’s detailed review of the RPD decision to the Federal Court’s oversight of legal and procedural fairness—plays a vital role in ensuring that refugee claimants receive a fair and just determination. Understanding the functions and focus of each body can help claimants navigate the process and seek the justice they deserve. If you’re facing a negative decision, consider seeking professional legal assistance to strengthen your case and effectively address any issues raised in the review process.

Frequently Asked Questions

• What is the Refugee Appeal Division (RAD)?

The Refugee Appeal Division (RAD) is a branch of the Immigration and Refugee Board of Canada that reviews decisions made by the Refugee Protection Division (RPD) to ensure they were fair and legally sound.

• How does the RAD evaluate decisions?

The RAD assesses whether the RPD correctly applied the law, followed due process, and made a reasonable decision based on the evidence presented.

• Can new evidence be submitted to the RAD?

Yes, the RAD may consider new evidence if it was not reasonably available at the time of the RPD hearing and significantly impacts the claim.

• What are the possible outcomes at the RAD?

The RAD can either overturn the RPD’s decision and grant refugee protection or uphold the original decision if it finds no errors.

• What is the role of the Federal Court in refugee appeals?

The Federal Court reviews decisions by the RPD or RAD to ensure they comply with Canadian law and principles of procedural fairness.

• Does the Federal Court reassess evidence?

No, the Federal Court does not reassess the evidence. It focuses on identifying legal or procedural errors in the decision-making process.

• What happens if the Federal Court finds an error?

If the Federal Court identifies an error, it can set aside the decision and refer the case back to the RPD or RAD for re-determination.

• What happens if the Federal Court does not find an error?

If no errors are found, the Federal Court upholds the original decision.

• What types of errors does the Federal Court review?

The Federal Court reviews legal errors, procedural fairness issues, and the reasonableness of the decision.

• What is procedural fairness in refugee claims?

Procedural fairness ensures that decisions are made without bias, that claimants have a chance to present their case, and that all relevant evidence is considered.

• Can I appeal directly to the Federal Court?

Claimants generally approach the Federal Court after exhausting options at the RAD or if they are ineligible to appeal to the RAD.

• What kind of support is available for refugee claimants?

Claimants can access legal aid in some provinces, community support groups, and immigration lawyers specializing in refugee cases.

• Why might a claim be rejected by the RPD?

Common reasons include lack of credibility, insufficient evidence, or findings that the claimant does not face a well-founded fear of persecution.

• Can I submit new evidence to the Federal Court?

Generally, the Federal Court does not accept new evidence. It reviews the evidence already presented to the RPD or RAD.

Consult with Vancouver Lawyers and Immigration Consultants