Refugee Appeal Division Handbook

​​December 31, 2022

Table of contents

  1. Foreword
  1. Introduction to the Refugee Appeal Division
    1. 1.1 Immigration and Refugee Board’s duty in proceedings before all divisions
    2. 1.2 Jurisdiction of the Refugee Appeal Division
      1. 1.2.1 Subsection 110(1) of the Immigration and Refugee Protection Act
      2. 1.2.2 Subsection 162(1) of the Immigration and Refugee Protection Act
      3. 1.2.3 Decisions that cannot be appealed to the Refugee Appeal Division
    3. 1.3 Parties before the Refugee Appeal Division
      1. 1.3.1 Who is a party?
      2. 1.3.2 Person who is the subject of the appeal
      3. 1.3.3 Minister
      4. 1.3.4 United Nations High Commissioner for Refugees (UNCHR) and Observers
      5. 1.3.5 Interested parties
    4. 1.4 Appealing to the Refugee Appeal Division – Requirements under the Act, Regulations, and Rules
      1. 1.4.1 Characteristics of an appeal at the Refugee Appeal Division
      2. 1.4.2 Requirements applicable to appeals made by the person
      3. 1.4.3 Requirements applicable to appeals made by the Minister
      4. 1.4.4 Requirements applicable to all appeals including those with a hearing
    5. 1.5 Judicial Review and Appeals
      1. 1.5.1 Federal Court
      2. 1.5.2 Federal Court of Appeal
      3. 1.5.3 Supreme Court of Canada
  2. The Refugee Appeal Division's Standard of Review
    1. 2.1 The Refugee Appeal Division’s correctness review
    2. 2.2 Deference – when the Refugee Protection Division has a meaningful advantage
      1. 2.2.1 What is the level of deference?
    3. 2.3 Judicial review of the Refugee Appeal Division’s choice of standard of review
    4. 2.4 The Refugee Appeal Division’s own analysis / independent assessment
      1. 2.4.1 What are Indicators of an Independent Assessment?
      2. 2.4.2 Can the Refugee Appeal Division adopt the Refugee Protection Division’s findings as part of its own analysis?
      3. 2.4.3 What is the Refugee Appeal Division to do with uncontested Refugee Protection Division findings and errors not raised on appeal?
  3. New Issues
    1. 3.1 What is a new issue?
    2. 3.2 The Refugee Appeal Division’s jurisdiction to raise new issues
      1. 3.2.1 Does the Refugee Appeal Division have jurisdiction to raise a new issue if it does not find an error in the Refugee Protection Division’s decision?
    3. 3.3 The requirement to give notice of a new issue to the person and to the Minister
      1. 3.3.1 What is the scope and content of the notice of a new issue?
      2. 3.3.2 Remedies for failing to give notice of a new issue
    4. 3.4 No breach of procedural fairness for the Refugee Appeal Division to raise a new issue and not address it in its reasons
    5. 3.5 Case law on new issues at the Refugee Appeal Division
      1. 3.5.1 Cases where the Federal Court found the Refugee Appeal Division raised a new issue
      2. 3.5.2 Cases where the Federal Court found the Refugee Appeal Division did not raise a new issue
  4. Admissibility of Evidence
    1. 4.1 Overview
    2. 4.2 Evidence from person who is the subject of the appeal
      1. 4.2.1 Admissibility of new evidence under explicit criteria of subsection 110(4)
      2. 4.2.2 Admissibility of new evidence under the Singh factors
      3. 4.2.3 Submitting evidence with the record
      4. 4.2.4 Submitting evidence post-record
      5. 4.2.5 Evidence not admitted by Refugee Protection Division
    3. 4.3 Minister’s evidence
      1. 4.3.1 Disclosure of Minister’s evidence
      2. 4.3.2 Limitations on the admissibility of Minister’s evidence
    4. 4.4 Evidence provided during an oral hearing before the Refugee Appeal Division
  5. Application of Article 1E by the Refugee Appeal Division
    1. 5.1. What this chapter covers
    2. 5.2. General principles on Article 1E
    3. 5.3. The timing issue: The relevant date for the Refugee Appeal Division in considering Article 1E exclusion
      1. 5.3.1. Description of the timing issue
      2. 5.3.2. Case law on the timing i​ssue
    4. 5.4. The role of the Refugee Appeal Division and Article 1E
    5. 5.5. New issues and Article 1E
  6. Oral Hearings
    1. 6.1. Introduction
    2. 6.2. Statutory framework
    3. 6.3. Discretionary nature of subsection 110(6)
    4. 6.4. Onus on RAD to consider and apply subsection 110(6)
    5. 6.5. Factors that must be met under subsection 110(6)
      1. 6.5.1. Evidence raises serious issue of credibility of the person
      2. 6.5.2. Evidence is central to the decision with respect to the refugee claim
      3. 6.5.3. Evidence would justify allowing or rejecting the refugee protection claim
    6. 6.6. Scope of a Refugee Appeal Division oral hearing
    7. 6.7. Holding a Refugee Appeal Division oral hearing - Procedural rules
      1. 6.7.1. Rules on appellant's record, reply record, notice of intervention respondent's record
      2. 6.7.2. Fixing a date for a hearing
      3. 6.7.3. Notice to appear
      4. 6.7.4. Conduct of a hearing
        1. 6.7.4.1 General rules
        2. 6.7.4.2 Particular situations
      5. 6.7.5. Person who is in custody
      6. 6.7.6. Interpreters
      7. 6.7.7. Observers
      8. 6.7.8. Designated representatives
      9. 6.7.9. Witnesses
      10. 6.7.10. Changing the location of a hearing
      11. 6.7.11. Changing the date or time of a hearing
      12. 6.7.12. Abandonment
      13. 6.7.13. Refugee Appeal Division decision after hearing
      14. 6.7.14. Virtual hearings
  7. Remedies
    1. 7.1. Finality
    2. 7.2. Paragraphs 111(1)(a) and (b) - Confirming the Refugee Protection Division determination or substituting a new determination
      1. 7.2.1. Confirming the Refugee Protection Division determination or setting aside the Refugee Protection Division determination and substituting a new determination on the same grounds
      2. 7.2.2. Confirming the Refugee Protection Division determination or setting aside the Refugee Protection Division determination and substituting a new determination on new grounds
    3. 7.3. Paragraph 111(1)(c) - Referring a matter back to the Refugee Protection Division
      1. 7.3.1. Interpretation of the phrase “without hearing evidence that was presented to the Refugee Protection Division”
      2. 7.3.2. Examples of referrals to the Refugee Protection Division ​
        1. 7.3.2.1. There is an insufficient evidentiary basis to determine the appeal
        2. 7.3.2.2. Breach of natural justice
        3. 7.3.2.3. Appeals based on credibility
    4. 7.4. Directions
      1. 7.4.1 Impact of Refugee Appeal Division directions on the Refugee Protection Division
  8. Common Natural Justice Issues at the Refugee Appeal Division
    1. 8.1. General principles
    2. 8.2. Refugee Appeal Division review of Refugee Protection Division fairness
    3. 8.3. Right to be heard
      1. 8.3.1 Opportunity to state the case
      2. 8.3.2 Right to know the case to be met
    4. 8.4. Right to representation
      1. 8.4.1 Allegations of counsel incompetence
      2. 8.4.2 Type of allegations of counsel incompetence
      3. 8.4.3 Remedying counsel incompetence before the Refugee Appeal Division
    5. 8.5. Adequacy of interpretation
      1. 8.5.1 Test for adequate interpretation
      2. 8.5.2 Waiver
    6. 8.6. Recordings and transcripts
      1. 8.6.1. Test
    7. 8.7. Disclosure by the Refugee Appeal Division and opportunity to provide submissions
      1. 8.7.1 Disclosing the National Documentation Package (NDP)
      2. 8.7.2 Disclosing additional documentary evidence
      3. 8.7.3 Judicial notice and specialized knowledge
      4. 8.7.4 Disclosing new issues at the Refugee Appeal Division
    8. 8.8. Bias
      1. 8.8.1 Bias – test and general principles
      2. 8.8.2 The Refugee Appeal Division’s review of allegations of bias at the Refugee Protection Division
      3. 8.8.3 Allegations of member bias
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