Note: A drafting error in the Protecting Canada’s Immigration System Act that allowed some categories of asylum claimants from the previous system to appeal to the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada (IRB) has been corrected.
This change came into effect on June 26, 2013, with Royal Assent of the Budget Implementation Act.
As a result, asylum claimants who were referred to the IRB between August 15 and December 14, 2012, and whose claims have not yet been decided by the Refugee Protection Division at the IRB as of June 26, 2013, will not have access to the RAD.
It was never the government’s intention to allow access to the new RAD to asylum claimants who filed claims under the previous asylum system. The legislation now reflects this intent.
The Refugee Appeal Division:
- gives most claimants a chance to prove that the Refugee Protection Division decision was wrong in fact or law or both, and
- lets new evidence be introduced that was not reasonably available at the time of the Refugee Protection Division process.
The appeal is paper-based, with oral hearings in exceptional cases.
The appeal process will be done by Governor in Council (GIC) appointees.
Decisions on most appeals are expected within 90 days unless an oral hearing is required.
Failed refugee claimants who are not eligible to appeal to the Refugee Appeal Division include:
- individuals from a designated country of origin
- those with a manifestly unfounded claim as decided by the IRB
- those with claims with no credible basis as decided by the IRB
- claimants who are subject to an exception to the Safe Third Country Agreement
- claims referred to the IRB before the new asylum system comes into force and re-hearings of those claims as a result of review by the Federal Court
- individuals who arrive as part of a designated irregular arrival
- individuals who withdrew or abandoned their refugee claims
- those cases in which the Refugee Protection Division at the IRB has allowed the Minister’s application to vacate or cease their refugee protection
- those with claims deemed rejected because of an order of surrender under the Extradition Act
- those with decisions on PRRA applications
All failed claimants can still ask the Federal Court to review a negative decision.