Author: Joel Sandaluk
Receiving a refusal of your refugee claim can be one of the most difficult moments in the refugee protection process. In most cases, the decision arrives by email, accompanied by a Notice of Decision and detailed Reasons for Decision explaining why the Refugee Protection Division (RPD) rejected the claim.
Sometimes the reasons for the decision can be very hard to read, even for me after I have worked and fought so hard to succeed in a claim that I believed in, and that my clients depended upon. While the emotional impact of a refusal can be overwhelming, it is critical to remain focused and seek legal advice immediately. Strict deadlines apply, and delaying action may significantly limit your options.
Many people feel like the refusal of their refugee claim is the end of the road, but in my experience, there are a number of options that may be available. Understanding these options can make the difference between removal from Canada and obtaining another opportunity to present your claim for protection.
Appealing a Refused Refugee Claim to the Refugee Appeal Division (RAD)
For many refugee claimants, the first avenue to challenge a refusal is an appeal to the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada.
The RAD is a specialized appeal tribunal that reviews decisions made by the Refugee Protection Division. Its role is to determine whether the RPD made errors of fact, errors of law, or both when assessing a claim for asylum in Canada. In most cases, the appeal proceeds without an oral hearing and is determined on the basis of:
- The RPD record;
- Written legal submissions;
- Supporting documentary evidence; and
- In some cases, admissible new evidence that was not previously available.
In an appeal, the RAD can correct the RPD when its decisions are unreasonable, unsupported by the evidence, or procedurally unfair. If it allows an appeal, the RAD may substitute its own decision or return the matter to the RPD for redetermination.
Important RAD Appeal Deadlines
Refugee appeals are subject to extremely strict timelines. Missing a filing deadline can permanently eliminate your right to appeal. If your claim has been refused, it is essential to consult a refugee lawyer immediately to determine whether you qualify for a RAD appeal and to preserve your rights.
Seeking Judicial Review in the Federal Court of Canada
Not every refused refugee claimant has access to the RAD. Certain categories of claimants are excluded from the appeal process and must instead seek judicial review in the Federal Court of Canada.
Judicial review is a significantly more formal process. Unlike cases before the RAD appeal, it is not a true appeal on the merits. Instead, the Federal Court examines whether the RPD committed an ‘error of law’ when it made a decision to refuse a claim for refugee protection. In practice, judicial reviews often arise because the tribunal misunderstood important evidence, failed to give a claimant a fair opportunity to present their case, or reached a conclusion that was simply not reasonably supported by the record.
Leave Must Be Granted
Before a judicial review can proceed, the Federal Court must grant leave. This means the Court must first determine that the application raises an arguable case worthy of further consideration. In other words, the Court must “agree” to hear your case.
Removal Orders May Become Enforceable
In many situations where no RAD appeal is available, the removal order associated with a refugee claim becomes effective immediately following the refusal. As a result, a claimant may need to bring an emergency motion to stay the execution of the removal order while the judicial review remains before the Court.
The Process Is Adversarial
Judicial reviews are contested proceedings. Lawyers from the Department of Justice represent the Minister and seek to uphold the RPD’s decision. The legal arguments on both sides can be highly technical, making experienced legal representation all the more important.
Representation Requirements
Unlike proceedings before the Immigration and Refugee Board, applicants before the Federal Court can only be represented by a lawyer. The fact that RCIC licensed consultants cannot represent clients in Federal Court may require claimants to retain new counsel after a refugee claim is refused.
Reopening or Reinstating a Withdrawn or Abandoned Refugee Claim
A less common, but potentially powerful, remedy involves applying to reopen or reinstate a refugee claim that was previously withdrawn or declared abandoned.
Where the Refugee Protection Division has deemed a claim abandoned, there is generally no appeal to the Refugee Appeal Division. In appropriate circumstances, however, a claimant may apply directly to the RPD to have the claim reopened or reinstated.
Such applications require:
- A written application;
- Detailed legal submissions;
- A sworn affidavit;
- Supporting documentary evidence; and
In some cases, this approach can be more effective than pursuing judicial review before the Federal Court.
Case Success: Reinstating a Withdrawn Refugee Claim
Our office recently succeeded in obtaining the reinstatement of a refugee claim that had previously been withdrawn.
The claimant initially made a refugee claim during a stressful interaction with the Canada Border Services Agency. Believing that she had acted hastily and wishing to proceed honestly and in good faith, she later withdrew the claim. The withdrawal was accepted by the Refugee Protection Division.
Shortly thereafter however, a close family member was murdered in her country of nationality. Given her family’s history of persecution by an armed group, the claimant realized that returning home would place her life at significant risk.
The challenge was demonstrating why the withdrawal occurred and explaining the significant change in circumstances that followed. This required the preparation of extensive documentary evidence and a detailed affidavit outlining the claimant’s circumstances and fears.
After reviewing the evidence and submissions, the tribunal agreed that reinstating the claim was in the interests of justice and granted the application. As a result, our client was given an opportunity to pursue refugee protection in Canada rather than face removal to a country where her safety was at risk.
Immediate Legal Advice Matters
Whether your refugee claim has been refused by the RPD, declared abandoned, or withdrawn, you should seek legal advice immediately. I often meet people who have waited too long after receiving a negative decision and whose delay in seeking help has limited their options, in some cases irreversibly.
Contact Mamann Sandaluk LLP
The refusal of your refugee claim does not necessarily mean your case is over. Whether you are considering a Refugee Appeal Division appeal, a Federal Court judicial review, or an application to reopen or reinstate a withdrawn or abandoned refugee claim, obtaining experienced legal advice quickly can be crucial to protecting your future in Canada.
At Mamann Sandaluk LLP, our lawyers have extensive experience representing refugee claimants before the Refugee Protection Division, the Refugee Appeal Division, and the Federal Court of Canada. We understand the urgency of refused refugee claims and the importance of identifying every available legal remedy.
If your refugee claim has been refused, withdrawn, or declared abandoned, contact Mamann Sandaluk today for a consultation. The sooner you act, the more options may be available to help you remain safe in Canada.
Frequently Asked Questions
What happens if my refugee claim is refused?
If your refugee claim is refused, you will receive a Notice of Decision along with written reasons explaining why the Refugee Protection Division rejected your case. The Notice of Decision itself will usually indicate whether you have a right of appeal to the Refugee Appeal Division or whether your only remedy is to seek judicial review in Federal Court.
Can every refused refugee claim be appealed to the Refugee Appeal Division?
No. Certain refugee claimants are excluded from access to the RAD. This may include claims found to be manifestly unfounded, claims that lack a credible basis, and other categories identified under the Immigration and Refugee Protection Act and its Regulations. Sometimes determining the available remedies can be confusing and counterintuitive.
What is the difference between a RAD appeal and a judicial review?
A RAD appeal is heard by the Refugee Appeal Division of the Immigration and Refugee Board, while a judicial review is conducted by the Federal Court of Canada. The two processes follow different procedural rules and involve different standards of review and evidentiary limitations. It is important to remember that one is not superior to the other, simply that the two processes are different with their own advantages and disadvantages.
How much time do I have to act after my refugee claim is refused?
Time is extremely limited. In many cases, unsuccessful claimants have as little as 15 days to initiate an appeal or commence a judicial review. Because deadlines are tight and may vary depending on the circumstances of the case, legal advice should be obtained immediately upon receiving a refusal.
Should I appeal to the RAD or apply for judicial review?
If you have a right of appeal to the Refugee Appeal Division, that remedy will need to be pursued first. Judicial review in the Federal Court is typically available only after one’s appeal rights have been exhausted.