Numerous organizations and individuals continue to criticize the Canadian government for failing to implement the Refugee Appeal Division (RAD).

The Refugee Appeal Division was created within the Immigration and Refugee Board (IRB) as part of the Immigration and Refugee Protection Act, approved by Parliament in 2001. However, in March 2002, the government announced, without consulting Parliament, that the Immigration and Refugee Protection Act would be implemented in June 2002 without the sections of the Act giving refugee claimants the right to appeal to the RAD.

On the other hand, the government went ahead with sections of the law reducing the number of board members hearing a claim from two to one member. This means that a single person decides the fate of a refugee claimant, even though a wrong decision may mean that a claimant is sent back to face persecution, torture and even death.

In the absence of the RAD, there is no appeal on the merits available to refused refugee claimants and wrong decisions go uncorrected. Claimants can apply for judicial review to the Federal Court, but must first receive leave, or permission, from the Court. Nine out of ten applications for leave are refused by the Court: no reasons are given for refusing leave.

Refused claimants may apply for a Pre-Removal Risk Assessment but this is not a mechanism for correcting errors in the initial refugee determination.  PRRA applicants can only raise new evidence, not argue that the initial decision by the Immigration and Refugee Board was wrong. 

Applications for permanent residence on humanitarian and compassionate grounds (H&C) also fail to offer any meaningful recourse for claimants who have been wrongly rejected.The measure is a discretionary one and the applicant can be deported before a decision on H&C has been granted.

Canada has been criticized by several international human rights bodies for the lack of an appeal on the merits.The Inter‑American Commission on Human Rights, commenting on Canada’s refugee determination system, has said: “Given that even the best decision‑makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection.

The United Nations High Commissioner for Refugees (UNHCR) wrote to the Canadian government to express its concern about the non-implementation of the RAD, saying “UNHCR considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process.”

The UN Committee against Torture, hearing a complaint from a rejected refugee claimant, found that the Canadian refugee determination system had been unable to correct a wrong decision in his case.

Canada is one of the very few countries in the world that fails to give refugee claimants an appeal on the merits.

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