The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses how an individual is able to appeal denial verdict of a refugee status.
As of December 15, 2012, there is an appeal of a negative Convention refugee or protected person decision to the Refugee Appeal Division of the Immigration and Refugee Board of Canada.
The Refugee Appeal Division is not a new hearing. It does not, with rare exception, allow for new evidence. With rare exception, the Refugee Appeal Division will only consider written legal argument as to why the Refugee Protection Division committed an error of law.
In the past, there was only Application for Leave and Judicial Review to the Federal Court of Canada. This remedy remains available for other immigration- related decisions, including negative decisions of the Refugee Appeal Division, but is complex and carries a low rate of success.
The Application for Leave and Judicial Review allows for the review by a judge of the Federal Court of a federal tribunal by way of a written “memorandum of law” that the decision-maker committed errors of law. The memorandum of law must be supported by an affidavit or written statement under oath of the applicant, in addition to other decided cases, but with rare exception cannot refer to new evidence.
This is a similar model to what has been adopted for the Refugee Appeal Division.
The Refugee Appeal Division Notice of Appeal must be filed no later than 15 days from the time of receipt of the negative decision, which could even be a Board member stating at the end of the hearing that the refugee or protection claim is denied. However, there is a 30 day period from receipt of reasons to finalize the appeal by providing the Appellant’s Record.
It may be possible to extend the time for filing of the Notice to Appeal of the Appellant’s Record. A formal application to do so is required.
The Appellant’s Record contains the Appellant’s memorandum of law and any materials from the hearing the Appellant wishes to rely on, such as articles used as evidence relied on at hearing, a transcript of the hearing or previously-decided cases. If the Appellant wishes to refer to new evidence, however, there are formal requirements to comply with before the Refugee Appeal Division will consider the request.
With rare exception, no further attendances are required for the refugee appeal. The Appellant may request a hearing. The Minister of Citizenship and Immigration may or may not file a notice seeking to respond to the Appellant’s Record. In most cases, a written decision will be rendered within 90 days from time of filing the Appellant’s Record.
The Immigration and Refugee Board of Canada has a Refugee Appellant’s “kit” posted on their website at www.irb-cisr.gc.ca, to set out in detail what is required for the entire process.
It is recommended that you seek legal advice in order to appeal a negative refugee or protection decision to the Refugee Appeal Division.