Author: Joel Sandaluk
When a refugee claim is refused in Canada, the days immediately following the decision are critical. A failed claimant’s next steps will determine their timelines, costs, legal options, and, most importantly, their chances of ultimately remaining in Canada. One of the most urgent questions is whether the claimant has the right to appeal to the Refugee Appeal Division (RAD). Contrary to popular belief, not every refused refugee claim has a right of appeal, and discovering this too late can be devastating.
I recently represented a couple whose case illustrates just how high the stakes can be.
A Case Study: When RAD Access Is Barred
The principal claimant had witnessed a crime committed by a police officer in his home country. His friend who was also a witness was himself killed on his way to give a statement to police. Fearing for his life, the claimant fled immediately.
Despite the seriousness of the facts, the Refugee Protection Division (RPD) found the claims manifestly unfounded and lacking a credible basis under section 107 of the Immigration and Refugee Protection Act (IRPA). These findings triggered a harsh consequence: under section 110(2)(d) of IRPA, claimants whose cases are found to have no credible basis or to be manifestly unfounded are excluded from appealing to the RAD.
This exclusion mattered for two reasons:claims found to have no credible basis
- The RAD is the only forum that can review and overturn an RPD refusal on the merits.
- Claimants excluded from the RAD do not benefit from an automatic stay of removal, meaning they can be deported while their judicial review is still pending.
What the Refugee Appeal Division Actually Does
The RAD, launched in 2012, reviews most negative RPD decisions. It generally does not hold a new hearing; instead, it decides the appeal based on:
- The RPD’s written reasons for decision
- The RPD record, including Port of Entry (POE) Notes
- Any new evidence that meets strict admissibility criteria
After considering an appeal, the RAD may:
- uphold the RPD decision
- quash the decision and send it back for a new hearing
- Set aside that RPD decision and substitute its own decision (granting refugee protection)
Crucially, while the appeal is underway, deportation from Canada is stayed, allowing the claimant to remain in Canada.
Why Many Failed Refugee Claimants Incorrectly Assume They Have a Right of Appeal
Because most refused claims are appealable, many people assume theirs will be too. Unfortunately, several categories of claimants are barred from accessing the RAD, including:
- claims found to be manifestly unfounded or lacking a credible basis
- claims that were withdrawn or that have been declared abandoned
- designated foreign nationals (e.g., irregular arrivals)
The result is often a shocking realization: that their case is suddenly far more urgent, and their ability to remain in Canada far more precarious than they had previously believed.
How I Assess RAD Eligibility
When I meet with someone whose refugee claim has been refused, one of my first tasks is determining whether they have a right of appeal. This assessment is more complex than it appears. Eligibility may depend on:
- the RPD’s factual findings
- the timing of the claim
- the claimant’s immigration history
- the legal category under which they entered Canada
To make an accurate determination, I always obtain:
- the RPD reasons for decision
- the Minister’s disclosure
- any procedural history relevant to the claim
Relying solely on a claimant’s recollection or understanding of events is rarely sufficient. Many RAD exclusions are technical, counterintuitive, and unrelated to the substance of the claim itself.
Once I have reviewed all materials, sometimes requiring additional research, I prepare a clear set of options, outlining:
- available remedies
- advantages and disadvantages
- realistic timelines
- costs
- my recommended strategy
This gives clients a meaningful understanding of their situation and allows them to plan for the legal obstacles ahead of them. We sometimes refer to this service as “to review and advise” though it is often the most important step we take in a client’s case.
Being Excluded from the RAD Is Not the End
A refusal without a right of appeal is not fatal. It simply means the legal team must work faster and harder.
In the case I described above, we immediately sought a stay of removal in Federal Court. Later, the RPD decision was overturned and sent back for redetermination. The time we gained allowed us to advance a humanitarian and compassionate (H&C) application, which is more likely to result in permanent resident status for the clients, just not in the way they originally expected.
If Your Refugee Claim Has Been Refused, Get Expert Legal Help Immediately
Understanding whether you can appeal to the RAD (and what to do if you cannot) is critical to your long term chances of remaining in Canada. The consequences of delay can be severe, including removal from Canada before your legal options are fully explored.
Mamann Sandaluk LLP is one of Canada’s leading immigration and refugee law firms. We have decades of experience navigating complex refusals, RAD exclusions, judicial reviews, and urgent Federal Court stays.
If your refugee claim has been refused, or if you need to know whether you can appeal, reach out to Mamann Sandaluk LLP for a confidential consultation. We will assess your options quickly, accurately, and strategically.
FAQ
Who can appeal a refused refugee claim to the RAD?
Most refugee claimants whose claims have been refused by the Refugee Protection Division (RPD) have the right to appeal to the Refugee Appeal Division, subject to certain exclusions. The Minister may also appeal a positive RPD decision, and the successful claimant has the right to respond to the Minister’s arguments.
Which refused claims are excluded from a RAD appeal?
Several categories of refused claims cannot be appealed to the RAD. These include:
- Claimants designated as Designated Foreign Nationals.
- Claims that were found ineligible to be referred to the RPD.
- Claims that were withdrawn or declared abandoned.
- Claims determined to be manifestly unfounded or lacking a credible basis.
- Cases where refugee protection has been cessated or vacated.
- Claims that were excluded under Article 1F of the Refugee Convention.
If your case falls into any of these categories, you do not have a right of appeal to the RAD.
What is the deadline to file a RAD appeal?
The deadlines are strict. You have 15 days from the date you received your written RPD decision to file your Notice of Appeal with the RAD registry in the region where your claim was heard. Missing this deadline can permanently bar your appeal.
What happens if my claim isn’t eligible for the RAD?
If you do not have a right of appeal to the RAD, your remaining remedy is to file an Application for Leave and for Judicial Review at the Federal Court of Canada. This is a separate process with its own timelines and procedural requirements.
Should I get a lawyer to assess my RAD eligibility?
Yes. If your refugee claim has been refused, the next steps are legally complex and time‑sensitive. An experienced immigration and refugee lawyer can assess your eligibility, advise you on the strongest strategy, and ensure that critical deadlines are met. Consultants cannot represent clients at the Federal Court, and relying on incorrect guidance can seriously jeopardize your case. It is essential to seek qualified legal counsel without delay.