Section 110 — Appeal to the Refugee Appeal Division
Text of provision
(1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.
(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.
(2) No appeal may be made in respect of any of the following:
(a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national;
(b) a determination that a refugee protection claim has been withdrawn or abandoned;
(c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded;
(d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if
(i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and
(ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division;
(d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1);
(e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased;
(f) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection.
(2.1) The appeal must be filed and perfected within the time limits set out in the regulations.
(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board.
(3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations.
(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.
(5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.
(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.
Plain English
Section 110 establishes the right to appeal RPD decisions to the Refugee Appeal Division (RAD). Both rejected claimants and the Minister (where the claim was accepted) may appeal.
Section 110(2) limits the right of appeal: it does not apply to persons who have been found ineligible under s 101, designated foreign nationals, or persons whose claims have been declared manifestly unfounded or withdrawn.
Section 110(4) restricts the evidence that may be submitted on appeal — generally, only evidence that arose after the RPD decision or was not available at the RPD hearing is admissible.
Practical effect
RAD appeals are primarily paper-based — the RAD reviews the RPD decision and the transcript on the record, without a full oral hearing in most cases. Oral hearings may be ordered where credibility is genuinely at issue or where a question of national importance arises.
The RAD may confirm the RPD decision, set it aside and substitute its own decision (if the RPD got it wrong), or remit for a new hearing. RAD decisions are themselves subject to judicial review in the Federal Court.