3. File your evidence and legal argument
Question & AnswerMy refugee claim was denied. Can I appeal?
You must prepare and file an Appellant’s Record 30 days after you receive the written negative decision from the Refugee Board.
The Refugee Appeal Division (RAD) won’t consider your appeal if you don’t file an Appellant’s Record.
Your Appellant’s Record must include the Notice of Decision and written reasons from the Refugee Board, any new documents, and your legal arguments. You should also include:
- a written statement that says whether you’re submitting new , whether you want an oral hearing, and whether you need an interpreter,
- any other new documents that support your appeal, including your own affidavit,
- any documents the Refugee Board refused to accept as evidence. For example, this could be evidence that you tried to submit after the 10-day disclosure deadline that could help you prove part of your refugee claim, and
- a list of the law you’re relying on. This list can include references to legislation as well as decisions made by other judges. These decisions are called case law.
You don’t need to include the documents you submitted to the Refugee Board for your refugee claim. All of these documents are already part of the appeal file that the RAD will review.
Review the instructions in the RAD’s Appellant’s Kit and the videos produced by the Refugee Board. If you don’t have a legal representative you can use the Appellant’s memorandum form provided by RAD.
Your Appellant’s memorandum must describe:
- the mistakes that were made at your refugee hearing, for example, the decision-maker ignored or misunderstood the evidence, applied the law wrong, or the interpretation was poor,
- how these mistakes affected the outcome of your case,
- how your evidence supports your appeal, and
- the decision you want the RAD to make. For example, whether you want the RAD to change the RPD decision or ask for a new hearing.
If you want the RAD to consider any new evidence, you have to show that:
- the evidence was discovered after your refugee claim was refused,
- the evidence wasn’t available before your refugee claim was refused, or
- there is a reason why you could not have been expected to present the evidence before your refugee claim was refused.
You don’t have to provide a transcript of your hearing at the Refugee Board. You can simply include a written statement that refers to the parts of the audio recording of your refugee hearing in your memorandum.
But you might want to include a written record of part or all of what was said at your refugee hearing in a transcript. For example, a transcript might help to challenge the quality of the interpretation at your hearing.
To get the transcript, you will need to ask someone who speaks both languages fluently to listen to the CD audio recording of your refugee hearing. You should receive this CD recording with your negative refugee decision. If you did not receive it with your decision, write to the Refugee Board right away to request a copy of the recording. The person who transcribes the recording will need to make a sworn statement to promise that the transcript is accurate.
File your documents
Make three copies of your Appellant’s Record – one for you, and two for the RAD. Mail or hand-deliver the original and one copy to the RAD registry listed in your Appellant’s kit. It’s a good idea to send it by registered mail so you have proof that it was delivered. If you hand-deliver it, bring all three copies to the registrar who will stamp your copy as proof that it was delivered.
If you miss the deadline to file your Appellant’s Record, you must apply for an extension of time when you file your complete Appellant’s Record.
You must give reasons why you couldn’t file the Appellant’s Record on time. For example, if you were sick, you should provide a doctor’s note. Be specific and explain what steps you took to try to file on time.
The RAD might not approve your request for an extension of time. If your request isn’t approved, your appeal might be dismissed. If this happens, try to get legal advice about asking to reopen your appeal or asking the Federal Court to review the decision denying your request for an extension.