If a claim is rejected by the Refugee Protection Division, individuals may be able to appeal the
decision to the Refugee Appeal Division of the IRB. If individuals have no right to appeal to the
The refugee Appeal Division can ask the Federal Court to review the decision.
Refugee Appeal Division (RAD) considers appeals against negative decisions and either allow
or reject the claims. In most cases, there will be no hearing as the RAD will base its decision on
the documents provided by the parties involved and the RPD record. The RAD assesses whether
the RPD decision, including credibility findings, is wrong in law, in fact or in mixed law and
fact.
The assessment of credibility is guided by legislative provisions and principles found in
jurisprudence. The RPD and RAD is not bound by any legal or technical rules of evidence and
may receive and base a decision on evidence that is adduced in the proceedings and considered
credible or trustworthy in the circumstances.
It would be an error for the RPD or the RAD to reject evidence simply because it is hearsay. It is
not open for Board members to base their decisions on assumptions and speculations for which
there is no real evidentiary basis.
In Odetoyinbo v Canada, the Federal Court decided that even where some of a claimant’s
allegations, for example regarding past experiences of persecution, may lack credibility, country
conditions may nonetheless indicate a prospective risk for the claimant as a member of a
particular social group or, in the absence of a nexus to the Convention grounds, as a person
among other similarly situated persons.
An adverse finding of credibility must have a proper foundation in the evidence. The Board errs
if it misapprehends, misconstrues or fails to account for the evidence before it or if the Board
bases its conclusions on speculation, conjecture, or on circular reasoning.
If a finding of fact which was material to a finding of lack of credibility was made without regard
to the evidence, the RPD’s decision will generally be overturned.
Once all avenues of appeal have been exhausted, the conditional removal order that was issued at
the time the refugee claim was initially made becomes enforceable in order to allow for removal
of the individuals.
Canada Border Services Agency (CBSA) is mandated to remove all foreign nationals, regardless
of citizenship, who are found to be inadmissible to Canada and who are subject to an enforceable
removal order.
All individuals have the right to due process. However, once they have exhausted all legal
avenues, they are obligated to respect Canadian immigration laws and leave Canada or be
removed by the CBSA. Failure to appear for a removal interview or a scheduled removal date
may lead to a Canada-wide arrest warrant and potential detention before removal by the CBSA.
