Refugee Appeal Division (RAD)
Overview
The Refugee Appeal Division (RAD) hears appeals from decisions of the Refugee Protection Division (RPD). Appeals are generally decided on the record without a hearing — the RAD reviews the RPD's decision, the hearing transcript, and any new evidence the appellant is permitted to introduce. The RAD applies a correctness standard for questions of law and a reasonableness standard for questions of fact and mixed fact and law. The RAD can confirm the RPD's decision, set it aside, or substitute its own determination. Not all persons have access to the RAD — designated foreign nationals and persons from Designated Countries of Origin are among those excluded.
The RAD was created as part of the 2012 Balanced Refugee Reform Act amendments to provide a genuine appeal mechanism — as opposed to the judicial review leave process before the Federal Court. The RAD is the primary appeal mechanism from RPD decisions; judicial review of the RAD is available but requires leave.
Legal basis
- IRPA s 110(1) — a person or the Minister may appeal to the RAD against an RPD decision
- IRPA s 110(2) — persons excluded from RAD access: abandoned claims; designated foreign nationals; persons whose claims were determined to be manifestly unfounded or have no credible basis; claims from DCOs
- IRPA s 110(4) — new evidence must be credible, relevant, and not reasonably available or not reasonably expected to have been presented at the RPD hearing
- IRPA s 110(6) — the RAD may hold a hearing only if it is satisfied that the appeal involves evidence that raises a serious issue of credibility (in combination with new evidence admitted under s 110(4))
- IRPA s 111 — RAD powers: confirm the RPD decision, set it aside and substitute a determination, or refer back to the RPD for redetermination
How it works
Standard of review
The RAD applies different standards to different questions:
- Questions of law: correctness — the RAD does not defer to the RPD on legal questions and applies its own correct interpretation
- Questions of fact and mixed fact/law: reasonableness — the RAD defers to RPD factual findings unless they are unreasonable in the Vavilov sense (not justified, transparent, and intelligible)
The correctness standard for legal questions means the RAD is expected to identify and apply the correct legal test independently. Where the RPD applies an incorrect legal standard (e.g., the wrong test for state protection, or the wrong PSG definition), the RAD should correct it — not simply ask whether the RPD's approach was reasonable.
Paper appeal model
RAD appeals are primarily conducted on the written record — the RPD hearing transcript, the BOC, the RPD's decision, and the parties' written submissions. A hearing is only convened if s 110(6) criteria are met: the RAD must have admitted new evidence that raises a serious credibility issue. In practice, most RAD appeals are decided on the papers.
New evidence — s 110(4)
An appellant may introduce new evidence on appeal only if it:
- Arose after the RPD hearing, or
- Was not reasonably available before the RPD hearing, or
- The person could not reasonably have been expected to have raised it at the RPD hearing
New evidence that meets these criteria and is credible and relevant may be admitted. Evidence that was available but not presented at the RPD (due to oversight or strategy) will generally not be admitted.
Who is excluded from RAD?
- Persons whose claims were abandoned at the RPD
- Designated foreign nationals (DFNs)
- Persons from Designated Countries of Origin (DCOs) — where the safe third country designation applies
- Persons whose claims were found to have no credible basis (s 107(2)) or to be manifestly unfounded (s 107.1)
Persons excluded from the RAD may still seek judicial review in the Federal Court, but must obtain leave to do so.