RAD Appeal Process — Detailed

This page sets out the detailed procedural steps for appealing a negative Refugee Protection Division (RPD) decision to the Refugee Appeal Division (RAD). For a conceptual overview of who can appeal and the grounds of appeal, see RAD appeal process — overview.

The RAD appeal procedure is governed by IRPA ss 110–111 and the Refugee Appeal Division Rules (SOR/2012-257). The standard of review applied by the RAD is correctness for questions of law and a modified standard for questions of fact and mixed fact and law: Canada (Citizenship and Immigration) v Huruglica 2016 FCA 93.

Step 1 — Notice of Appeal (Day 0–15)

A Notice of Appeal must be filed at the RAD within 15 days of receiving the written RPD decision. The Notice of Appeal is a short form available from the IRB website. Filing the Notice of Appeal triggers the appeal and suspends any removal order pending the RAD decision (subject to exceptions for designated foreign nationals).

Step 2 — RPD Record (provided by IRB)

After the Notice of Appeal is filed, the IRB transmits the RPD Record to the RAD. The RPD Record includes the RPD decision, reasons, the Basis of Claim (BOC) form, all evidence before the RPD, and the transcript or audio recording of the RPD hearing. The RAD uses the RPD Record as the primary basis for its review.

Step 3 — Appellant's Record (Day 0–30)

Within 30 days of receiving the RPD decision (not the Notice of Appeal filing date), the appellant must file an Appellant's Record containing:

• A memorandum of argument (written submissions) identifying the errors in the RPD decision;
• Any documentary evidence the appellant relies on (including any new evidence, subject to admissibility rules);
• A declaration confirming the documents are authentic.

The Appellant's Record is the central document in the appeal. The memorandum should identify specific errors in the RPD's reasoning — credibility findings unsupported by the evidence, misapplication of legal tests, failure to consider relevant evidence, or errors in country condition analysis.

Step 4 — New Evidence (IRPA s 110(4))

New evidence is only admissible if it: (a) arose after the RPD rejection; (b) was not reasonably available at the time of the RPD hearing; or (c) was not presented at the RPD for reasons that could not reasonably have been foreseen. Evidence that was available but not submitted at the RPD (e.g., because counsel did not obtain it in time) generally does not qualify.

Step 5 — Minister's Intervention (optional)

The Minister of Public Safety (through CBSA) may intervene in a RAD appeal. The Minister may support the RPD decision, challenge it, or raise new arguments including exclusion. If the Minister intervenes, a Respondent's Record is filed within 15 days of receiving the Appellant's Record.

Step 6 — RAD Decision (no oral hearing in most cases)

Most RAD appeals are decided on the written record without an oral hearing. The RAD holds an oral hearing only if it is required to decide an issue of credibility based on new evidence that was not before the RPD. In practice, oral hearings are rare.

Processing times vary, but most RAD decisions are issued within 6–12 months of filing.

Step 7 — RAD Outcomes (IRPA s 111)

The RAD may:

• Confirm the RPD decision (reject the appeal) — the claimant is not a protected person and is subject to removal;
• Set aside and substitute its own decision — if the RAD allows the appeal, it substitutes a determination that the claimant is (or is not) a Convention refugee or person in need of protection;
• Refer back to RPD — if the RAD cannot make a final determination without hearing evidence that cannot be admitted at the RAD level, it may refer the matter back to the RPD for a new hearing.

After the RAD

A negative RAD decision may be challenged by judicial review in the Federal Court, with leave, within 15 days of receiving the decision (inside Canada). Judicial review is on a reasonableness standard. Leave is required and is granted in fewer than half of applications.