Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal

RAD Rules Part 1Edit

The text of the relevant rules reads:

PART 1
Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal

RAD Rules 2-3: Filing and Perfecting an AppealEdit

Filing and Perfecting an Appeal

RAD Rule 2: Filing appealEdit

Filing appeal
2 (1) To file an appeal, the person who is the subject of the appeal must provide to the Division three copies of a written notice of appeal.

Copy provided to Minister
(2) The Division must provide a copy of the notice of appeal to the Minister without delay.

Content of notice of appeal
(3) In the notice of appeal, the appellant must indicate
(a) their name and telephone number, and an address where documents can be provided to them;
(b) if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer;
(c) the identification number given by the Department of Citizenship and Immigration to them;
(d) the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that they received the written reasons for the decision;
(e) the language — English or French — chosen by them as the language of the appeal; and
(f) the representative’s contact information if the Refugee Protection Division has designated a representative for them in the proceedings relating to the decision being appealed, and any proposed change in representative.

Time limit
(4) The notice of appeal provided under this rule must be received by the Division within the time limit for filing an appeal set out in the Regulations.

RAD Rule 2(4): The notice of appeal must be received by the Division within the time limit for filing an appeal set out in the RegulationsEdit

The time limit for filing an appeal is set out in s. 159.91 of the Regulation:

Appeal to Refugee Appeal Division

Time limit for appeal
159.91 (1) Subject to subsection (2), for the purpose of subsection 110(2.1) of the Act,
(a) the time limit for a person or the Minister to file an appeal to the Refugee Appeal Division against a decision of the Refugee Protection Division is 15 days after the day on which the person or the Minister receives written reasons for the decision; and
(b) the time limit for a person or the Minister to perfect such an appeal is 30 days after the day on which the person or the Minister receives written reasons for the decision.

For more context to this part of the regulations, see: Canadian Refugee Procedure/IRPR s. 159.91: Appeal to Refugee Appeal Division.

RAD Rule 2(4): The Regulation sets out the process for extending the time limit for filing an appealEdit

RAD Rule 2(4) provides that the notice of appeal provided under this rule must be received by the Division within the time limit for filing an appeal set out in the Regulations. Section 159.91(2) of that regulation sets out the criteria to be granted an extension to that time limit:

Extension
159.91 (2) If the appeal cannot be filed within the time limit set out in paragraph 1)(a) or perfected within the time limit set out in paragraph (1)(b), the Refugee Appeal Division may, for reasons of fairness and natural justice, extend each of those time limits by the number of days that is necessary in the circumstances.

In short, this provision contains three elements:

  1. It must not be possible for the appeal to be filed and perfected within the time limits of, respectively, 15 and 30 calendar days. Under this element, the party seeking an extension of time must provide an explanation for the delay and must show a continuing intention to appeal during the delay.
  2. An extension must be for the number of days necessary in the circumstances. This requirement suggests that the delay should be as short as possible or, in other words, that every day of delay should be justified. The reference to "circumstances" implies an individualised assessment of the circumstances in each particular request for an extension of time.[1]
  3. Any extension must be for reasons of fairness and natural justice.[2] Jurisprudence has established four factors to be considered in the applications for extension of time made before courts or administrative tribunals. These factors are not exhaustive and other factors may be considered, such as, for example, the complexity of an appeal, a factor mentioned in RAD Rule 6(7). All of the factors do not have to be met. The appropriate weight must be given to each factor in the context of a particular case. The four factors are to be applied in order to determine whether fairness and natural justice, in the circumstances, require an extension of time for a particular number of days:

a) there was and is a continuing intention on the part of the party presenting the motion to pursue the appeal;

b) the subject matter of the appeal discloses an arguable case;

c) there is a reasonable explanation for the defaulting parties delay; and

d) there is no prejudice to the other party in allowing the extension.[3]

RAD Rule 3: Perfecting AppealEdit

Perfecting appeal

3 (1) To perfect an appeal, the person who is the subject of the appeal must provide to the Division two copies of the appellant’s record.

Copy provided to Minister

(2) The Division must provide a copy of the appellant’s record to the Minister without delay.

Content of appellant’s record
(3) The appellant’s record must contain the following documents, on consecutively numbered pages, in the following order:
(a) the notice of decision and written reasons for the Refugee Protection Division’s decision that the appellant is appealing;
(b) all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;
(c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal;
(d) a written statement indicating
 (i) whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act,
 (ii) whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and
 (iii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the appellant needs an interpreter;
(e) any documentary evidence that the appellant wants to rely on in the appeal;
(f) any law, case law or other legal authority that the appellant wants to rely on in the appeal; and
(g) a memorandum that includes full and detailed submissions regarding
 (i) the errors that are the grounds of the appeal,
 (ii) where the errors are located in the written reasons for the Refugee Protection Division’s decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing,
 (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant,
 (iv) the decision the appellant wants the Division to make, and
 (v) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held.

Length of memorandum
(4) The memorandum referred to in paragraph (3)(g) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Time limit
(5) The appellant’s record provided under this rule must be received by the Division within the time limit for perfecting an appeal set out in the Regulations.

Rule 3(3)(g)(i): The appellant's record must contain a memorandum with submissions regarding the errors that are the grounds of the appealEdit

Rule 3(3)(g) provides that the appellant's record must contain a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal and (ii) where the errors are located in the reasons for the Refugee Protection Division's decision or in a recording of the Refugee Protection Division hearing. A corollary of the obligation to identify such errors is that an applicant cannot reasonably fault the RAD for not going beyond the grounds of appeal or for not providing extensive reasons regarding the grounds of appeal that the applicant did not previously challenge.[4]

Rule 3(3)(f): Legal authorities are to be distinguished from evidence that an appellants wants to rely onEdit

Rule 3(3)(f) provides that an appellant's record must contain "any law, case law or other legal authority that the appellant wants to rely on in the appeal". This rule is to be distinguished from Rule 3(3)(e), which provides that an appellant's record must contain "any documentary evidence that the appellant wants to rely on in the appeal". In this way, legal authorities are considered distinct from documentary evidence that an appellant seeks to rely on. As such, the Federal Court accepted in Osemwenkhae v. Canada that "UNHCR Guidelines are not new documents in the sense of being new evidence but rather should have been introduced as doctrinal or legal support for [the appellant's] position."[5] But see Valdez v. Canada which held it was reasonable for the RAD to consider the UNHCR Handbook under the new evidence framework of subsection 110(4) of the IRPA in a circumstance where the appellant had argued that the Handbook was new evidence justifying an oral hearing.[6]

RAD Rule 4: Intervention by the MinisterEdit

Intervention by the Minister
Notice of intervention

4 (1) To intervene in an appeal at any time before the Division makes a decision, the Minister must provide, first to the appellant and then to the Division, a written notice of intervention, together with any documentary evidence that the Minister wants to rely on in the appeal.

Content of notice of intervention

(2) In the notice of intervention, the Minister must indicate

(a) counsel’s contact information;

(b) the identification number given by the Department of Citizenship and Immigration to the appellant;

(c) the appellant’s name, the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that the Minister received the written reasons for the decision;

(d) whether the Minister is relying on any documentary evidence referred to in subsection 110(3) of the Act and the relevance of that evidence; and

(e) whether the Minister is requesting that a hearing be held under subsection 110(6) of the Act, and if the Minister is requesting a hearing, why the Division should hold a hearing and whether the Minister is making an application under rule 66 to change the location of the hearing.

Minister’s intervention record

(3) In addition to the documents referred to in subrule (1), the Minister may provide, first to the appellant and then to the Division, the Minister’s intervention record containing the following documents, on consecutively numbered pages, in the following order:

(a) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript in the appeal and the transcript was not provided with the appellant’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;

(b) any law, case law or other legal authority that the Minister wants to rely on in the appeal; and

(c) a memorandum that includes full and detailed submissions regarding

(i) the grounds on which the Minister is contesting the appeal, and

(ii) the decision the Minister wants the Division to make.

Length of memorandum

(4) The memorandum referred to in paragraph (3)(c) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof documents were provided

(5) The documents provided to the Division under this rule must be accompanied by proof that they were provided to the appellant.

Reply
Reply to Minister’s intervention

5 (1) To reply to a Minister’s intervention, the appellant must provide, first to the Minister and then to the Division, a reply record.

Content of reply record

(2) The reply record must contain the following documents, on consecutively numbered pages, in the following order:

(a) all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript to support the reply and the transcript was not provided with the appellant’s record or by the Minister, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate;

(b) any documentary evidence that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or by the Minister;

(c) any law, case law or other legal authority that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or by the Minister; and

(d) a memorandum that includes full and detailed submissions regarding

(i) only the grounds raised by the Minister,

(ii) how any documentary evidence referred to in paragraph (b) meets the requirements of subsection 110(4) or (5) of the Act and how that evidence relates to the appellant, and

(iii) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held and they did not include such a request in the appellant’s record, and if the appellant is requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing.

Length of memorandum

(3) The memorandum referred to in paragraph (2)(d) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof document was provided

(4) The reply record provided to the Division must be accompanied by proof that it was provided to the Minister.

Time limit

(5) Documents provided under this rule must be received by the Division no later than 15 days after the day on which the appellant receives the Minister’s notice of intervention, the Minister’s intervention record, or any additional documents provided by the Minister, as the case may be.

Extension of Time
Application for extension of time to file or perfect

6 (1) A person who is the subject of an appeal who makes an application to the Division for an extension of the time to file or to perfect an appeal under the Regulations must do so in accordance with rule 37, except that the person must provide to the Division the original and a copy of the application.

Copy provided to Minister

(2) The Division must provide a copy of an application under subrule (1) to the Minister without delay.

Content of application

(3) The person who is the subject of the appeal must include in an application under subrule (1)

(a) their name and telephone number, and an address where documents can be provided to them;

(b) if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer;

(c) the identification number given by the Department of Citizenship and Immigration to them; and

(d) the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that they received the written reasons for the decision.

Accompanying documents — filing

(4) An application for an extension of the time to file an appeal under subrule (1) must be accompanied by three copies of a written notice of appeal.

Accompanying documents — perfecting

(5) An application for an extension of the time to perfect an appeal under subrule (1) must be accompanied by two copies of the appellant’s record.

Application for extension of time to reply

(6) A person who is the subject of an appeal may make an application to the Division for an extension of the time to reply to a Minister’s intervention in accordance with rule 37.

Factors — reply

(7) In deciding an application under subrule (6), the Division must consider any relevant factors, including

(a) whether the application was made in a timely manner and the justification for any delay;

(b) whether there is an arguable case;

(c) prejudice to the Minister, if the application was granted; and

(d) the nature and complexity of the appeal.

Notification of decision on application

(8) The Division must without delay notify, in writing, both the person who is the subject of the appeal and the Minister of its decision with respect to an application under subrule (1) or (6).

RAD Rule 7: Decision without further noticeEdit

Disposition of an Appeal

Decision without further notice
7 Unless a hearing is held under subsection 110(6) of the Act, the Division may, without further notice to the appellant and to the Minister, decide an appeal on the basis of the materials provided
(a) if a period of 15 days has passed since the day on which the Minister received the appellant’s record, or the time limit for perfecting the appeal set out in the Regulations has expired; or
(b) if the reply record has been provided, or the time limit for providing it has expired.

Rule 7 provides that the Division may, without further notice, decide the appeal, but further notice is required if the appeal is decided on a new groundEdit

Rule 7 of the RAD Rules provides that, where a hearing is not warranted, the RAD may, “without further notice to the appellant and to the Minister, decide an appeal on the basis of the materials provided.” The Federal Court has recognized that, notwithstanding this rule, deciding an appeal on a new ground without first giving notice to the parties that the issue is in play can breach the requirements of procedural fairness. Justice Hughes expressed this exception to the general rule as follows in Husian v Canada: “The point is that if the RAD chooses to take a frolic and venture into the record to make further substantive findings, it should give some sort of notice to the parties and give them an opportunity to make submissions.”[7] Furthermore, where the Division raises a new issue, the Minister should be given notice of the new issue, even if they are not a party to the proceeding.[8]

What is a new issue requiring notice?Edit

The test for whether procedural fairness requires notice to the parties that a new issue will be considered is whether the ground on which the RAD is deciding the matter is a new issue in the sense that it is legally and factually distinct from the grounds of appeal advanced and cannot reasonably be said to stem from the issues on appeal as framed by the parties: Ching v Canada.[9] Notice should be provided whenever new or additional arguments, reasoning, or analysis unknown to the parties is being considered by the Division.[10] If there are additional substantive findings based on the record not addressed in the RPD decision and therefore not raised by the parties on appeal, then notice must be provided prior to the Division making its findings.[11] Essentially, this protects persons who are the subject of an appeal and the Minister against unfair surprise. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Claimants have an expectation that a claim will only be rejected on the basis of a legal issue that a panel has identified as being at issue.

Categories of cases in which the Board may err if such notice is not provided include:

  • New evidence. Where new evidence is being considered on appeal, notice should be provided. For example, where new country condition documentation comes up after the appeal has been perfected, such as a new NDP that is relevant.[12]
  • A new legal issue. The RAD must provide such notice where it wants to make a finding on an issue that had not been identified as a material issue before the RPD, either at the hearing or in the reasons for decision on issues including state protection,[13] IFA,[14] lack of prospective risk,[15] a reconsideration of a claimant's credibility,[16] and exclusion.[17] This applies whether or not the issue was fully canvassed by the RPD at the hearing but was not relied upon in the decision,[18] or whether it was simply not raised at the initial hearing.[19]
  • Additional substantive findings on a previously-identified legal issue. In some circumstances, the Division should provide notice where it makes additional substantive findings on an already-identified legal issue. That said, this area of the law is unclear and there are decisions that offer conflicting conclusions on the necessity of notice in such circumstances. Some discussion of the cases follows:
    • Credibility: While the RAD cannot raise a new issue without notice to the parties, it is entitled to make independent findings of credibility against an appellant where credibility was at issue before the RPD, the RPD's findings are contested on appeal, and the RAD's additional findings arise from the evidentiary record.[20] The RAD may make such independent findings without questioning the claimant or providing an opportunity to make submissions.[21] For example, in Popoola v. Canada the court upheld a RAD decision which considered two additional credibility concerns (regarding the applicants’ US visas and the alleged presence of a neighbour during a break-in at their home) in a case where credibility was already at issue.[22] Similarly, in Sun v. Canada, the court found no breach of procedural fairness where the RAD raised new credibility issues about alleged inconsistencies in the claimant's evidence that had not been considered by the RPD and for which she was not given notice. The court held that the RAD was entitled to find an additional basis to question the applicant’s credibility using the record that was before the RPD.[23] In Onwuanagbule v. Canada, in contrast, the court held that the RAD should provide notice where it makes negative credibility inferences with respect to areas that were not addressed either by the RPD or in the appellant’s memorandum (even where credibility is generally raised on appeal).[24]
    • Genuineness of documents: The RAD is tasked with undertaking its own review of evidence, and may make additional or different credibility findings with respect to a document without this being a new issue that triggers a breach of procedural fairness.[25] The RAD does not have a duty to confront a claimant about its concerns related to documents provided by the claimant where the issues raised and considered by the RAD are linked to the parties’ submissions or the RPD’s findings.[26] That said, notice should be provided where the RAD raises new concerns about the genuineness of evidence tendered before the RPD which had not been discussed or put to the appellant prior.[27] However, in Zerihaymanot v. Canada, the court held that the RAD did not raise a new issue when it commented on additional ways in which the applicant’s birth certificate did not match the samples in the NDP that were not identified by the RPD (absence of signing official’s name and language in document).[28]
    • IFA: Notice should be provided where the RAD considers an IFA in a city not considered by the RPD, even where the RPD had raised IFA as an issue.[29]

ReferencesEdit

  1. X (Re), 2017 CanLII 149353 (CA IRB), at para 6, <https://canlii.ca/t/j46pm#par6>, retrieved on 2022-04-29.
  2. X (Re), 2013 CanLII 76391 (CA IRB), at para 17, <https://canlii.ca/t/g23dh#par17>, retrieved on 2022-04-28.
  3. Canada (Attorney General) v. Pentney, 2008 FC 96, as cited and applied in the RAD context in X (Re), 2017 CanLII 149353 (CA IRB), at para 6, <https://canlii.ca/t/j46pm#par6>, retrieved on 2022-04-29.
  4. Shalaiev, Dmytro v. M.C.I. (F.C., No. IMM-6383-20), Roussel, April 1, 2022; 2022 FC 457.
  5. Osemwenkhae v. Canada (Citizenship and Immigration), 2022 FC 503 (CanLII), at para 7, <https://canlii.ca/t/jnlcq#par7>, retrieved on 2022-05-04.
  6. Davila Valdez c. Canada (Citoyenneté et Immigration), 2022 CF 596 (CanLII), au para 17, <https://canlii.ca/t/jnwwq#par17>, consulté le 2022-05-13.
  7. Husian v Canada (Citizenship and Immigration), 2015 FC 684 at para 10.
  8. Canada (Citizenship and Immigration) v. Alazar, 2021 FC 637 (CanLII), <https://canlii.ca/t/jgr79>, retrieved on 2022-04-29
  9. Ching v Canada (Citizenship and Immigration), 2015 FC 725 at paras 65 to 76.
  10. Kwakwa, 2016 FC 600, para. 26.
  11. Husian, 2015 FC 684, para. 10 and Dalirani, 2020 FC 258, paras. 29 and 20.
  12. Zhang, 2015 FC 1031, para. 54.
  13. Xu v. Canada, 2019 FC 639, paras. 47 to 53.
  14. Cardenas, 2017 FC 1194 at para. 3.
  15. Gonzalez Jimenez, Nerio Miguel v. M.C.I. (F.C., No. IMM-3382-21), Roussel, April 5, 2022, 2022 FC 479.
  16. Koanda, 2019 FC 169, paras. 15 to 18 and Laag, 2019 FC 890, paras. 22-23.
  17. Milfort-Laguere, 2019 FC 1361, para. 27.
  18. Ojarikre, 2015 FC 896, paras. 22 and 23.
  19. Jianzhu, 2015 FC 551, para. 12 and Ching, 2015 FC 725, paras. 66, 67 and 72.
  20. Nuriddinova v Canada (Citizenship and Immigration), 2019 FC 1093, para. 47.
  21. Mchedlishvili, Vasili v. M.C.I. (F.C., no. IMM-360-21), Mosley, February 21, 2022; 2022 FC 6229.
  22. Popoola v. Canada (Citizenship and Immigration), 2022 FC 555 (CanLII), at para 28, <https://canlii.ca/t/jp10h#par28>, retrieved on 2022-05-13.
  23. Sun v. Canada (Citizenship and Immigration) – (FC File number IMM-4459-21) Justice Brown, May 12, 2022; 2022 FC 710.
  24. Palliyaralalage, 2019 FC 596; Mei Ling He, 2019 FC 1316, para. 80 and Onwuanagbule, 2020 FC 550, paras. 9 to 13.
  25. Gadafi v Canada (Citizenship and Immigration), 2021 FC 1011 at para 24; Tan v Canada (Citizenship and Immigration), 2016 FC 876 at para 40.
  26. Lemma v. Canada (Citizenship and Immigration), 2022 FC 770 (CanLII), at para 23, <https://canlii.ca/t/jpj13#par23>, retrieved on 2022-06-27.
  27. Ortiz, 2016 FC 180, para. 22.
  28. Zerihaymanot, Brhane Ghebrihiwet, v. M.C.I. (F.C., no. IMM-3077-21), McHaffie, April 26, 2022; 2022 FC 610.
  29. Boluwaji v. Canada, 2018 FC 1154, para. 20.