One of the main areas of our work involves the preparation of submissions for negative refugee claims. Claimants who initiated cases after 2012, subject to some important exemptions, are entitled to appeal their negative decisions to the Refugee Appeal Division (RAD). Claims initiated prior to 2012 are not entitled to an appeal before the RAD and must seek Judicial Review of their negative decisions to the Federal Court. In addition, claimants can seek Judicial Review of Negative decisions at the RAD.
The Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) presently has a failure rate of approximately 50%to 80% and therefore, even the most competent counsel will fail in more than half their cases. As a result, many clients require assistance when they receive a negative result.
Levine Associates have been representing clients at the Federal Court Trial Division in such applications for more than 15 years during which time we have built up a solid body of precedent-setting case law which we actively use in both our refugee hearings and Judicial Reviews of negative decisions. In addition, Levine Associates regularly brings applications before the RAD where we have succeeded both in gaining new hearings for our clients as well as receiving substituted positive decisions from the RAD.
If you are seeking to appeal to the RAD or Judicially Review your negative refugee claim, please contact our office to arrange a consultation during which time a lawyer will review your negative decision and provide you with a summary opinion as to the merits of your Appeal or Judicial Review application. If we are of the view that substantive errors have been made we will recommend that you proceed with your application. Once retained, an application will be issued and the record submitted.
In cases where you are entitled to a RAD appeal (as of July 2015 case law suggests all claimants’ have a right to appeal) a Notice must be provided within 15 days of your negative decision. A record must then be filed within 30 days of the date of your original decision. In almost all RAD cases no appearance is required by either the claimant or counsel. These appeals are almost always done based on the written record. RAD members have authority to return negative decisions to the RPD for re-hearing. Though much less frequent, the RAD also has the power to substitute their own decision and determine a case positive which was rejected by the RPD. Accordingly, it is vital that the submissions are made clearly and are well organized. The standard of review as well as the jurisdiction of the RAD, are technical matters which a trained refugee lawyer is best suited to deal with.
As noted above, cases initiated before 2012 as well as those claims initiated after 2012 which are exempt from the RAD, are still entitled to seek a Judicial Review of negative refugee claims. However, unlike RAD appeals, Judicial Reviews are not automatic. Judicial Reviews are given a preliminary review by a judge to determine whether “leave,” or permission, should be granted by the Court. Only where leave has been granted will we have the opportunity to attend at the Federal Court Trial Division (FCTD) and argue your case. Unlike decision makes at the RAD, Judges at the FCTD do not have authority to impose their own refugee determination. If we succeed with the Judicial Review, the case will be returned to the RAD or RPD for re-determination by a different panel member.
Remember Judicial Reviews must be commenced within 15 days of the day you receive your negative decision. Never delay contacting a lawyer to discuss your appeal options.
Judicial Reviews of Negative IAD Decisions
One of the common areas for Judicial Reviews is in regard to negative IAD decisions. In particular, we are seeing a number of negative IAD decisions related to sponsorship appeals. Unlike the IAD, Judicial Reviews are more limited in scope and allow the Court to review only questions of fact and law that were dealt with by the IAD tribunal. Only in very exceptional circumstances is an applicant allowed to enter new evidence which was not before the tribunal. Furthermore, unlike the IAD, the Federal Court cannot impose its own decision in regard to the Immigration matter. If the application succeeds, the Federal Court will order the matter returned to the IAD for reconsideration by a different member of the Board.