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Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal

RAD Rules - Part 1
The text of the relevant rules reads: PART 1 Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal

RAD Rules 2-3: Filing and Perfecting an Appeal
Filing and Perfecting an Appeal

RAD Rule 2: Filing appeal
Filing appeal 2 (1) To file an appeal, the person who is the subject of the appeal must provide to the Division three copies of a written notice of appeal.

Copy provided to Minister (2) The Division must provide a copy of the notice of appeal to the Minister without delay.

Content of notice of appeal (3) In the notice of appeal, the appellant must indicate (a) their name and telephone number, and an address where documents can be provided to them; (b) if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer; (c) the identification number given by the Department of Citizenship and Immigration to them; (d) the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that they received the written reasons for the decision; (e) the language — English or French — chosen by them as the language of the appeal; and (f) the representative’s contact information if the Refugee Protection Division has designated a representative for them in the proceedings relating to the decision being appealed, and any proposed change in representative.

Time limit (4) The notice of appeal provided under this rule must be received by the Division within the time limit for filing an appeal set out in the Regulations.

RAD Rule 2(1): The requirement to provide three copies of the written notice of appeal has been waived
The Practice Notice: Exchange of documents through Canada Post epost Connect™ to the Refugee Appeal Division states that multiple copies of documents do not need to be submitted where required in the Rules.

RAD Rule 2(4): The notice of appeal must be received by the Division within the time limit for filing an appeal set out in the Regulations
The time limit for filing an appeal is set out in s. 159.91 of the Regulation: Appeal to Refugee Appeal Division

Time limit for appeal 159.91 (1) Subject to subsection (2), for the purpose of subsection 110(2.1) of the Act, (a) the time limit for a person or the Minister to file an appeal to the Refugee Appeal Division against a decision of the Refugee Protection Division is 15 days after the day on which the person or the Minister receives written reasons for the decision; and (b) the time limit for a person or the Minister to perfect such an appeal is 30 days after the day on which the person or the Minister receives written reasons for the decision. For more context to this part of the regulations, see: Canadian Refugee Procedure/IRPR s. 159.91: Appeal to Refugee Appeal Division. For more details about requesting an extension of time to file or perfect, see: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal.

RAD Rule 3: Perfecting appeal and content of appellant's record
Perfecting appeal 3 (1) To perfect an appeal, the person who is the subject of the appeal must provide to the Division two copies of the appellant’s record.

Copy provided to Minister (2) The Division must provide a copy of the appellant’s record to the Minister without delay.

Content of appellant’s record (3) The appellant’s record must contain the following documents, on consecutively numbered pages, in the following order: (a) the notice of decision and written reasons for the Refugee Protection Division’s decision that the appellant is appealing; (b) all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate; (c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal; (d) a written statement indicating (i) whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act, (ii) whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, and if they are requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing, and (iii) the language and dialect, if any, to be interpreted, if the Division decides that a hearing is necessary and the appellant needs an interpreter; (e) any documentary evidence that the appellant wants to rely on in the appeal; (f) any law, case law or other legal authority that the appellant wants to rely on in the appeal; and (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division’s decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant, (iv) the decision the appellant wants the Division to make, and (v) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held.

Length of memorandum (4) The memorandum referred to in paragraph (3)(g) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Time limit (5) The appellant’s record provided under this rule must be received by the Division within the time limit for perfecting an appeal set out in the Regulations.

Rule 3(1): The requirement to provide two copies of the appellant's record has been waived
The Practice Notice: Exchange of documents through Canada Post epost Connect™ to the Refugee Appeal Division states that multiple copies of documents do not need to be submitted where required in the Rules.

Rule 3(3)(b): The appellant's record must contain all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript in the appeal
Rule 3(3)(b) provides that the appellant's record must contain all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate. That said, the Practice Notice: Exchange of documents through Canada Post epost Connect™ to the Refugee Appeal Division states that the RAD removes (waives) the requirement in the rules for signatures on documents and RAD forms submitted in support of an appeal.

The intent of this rule is that a transcript of relevant portions of the hearing will be provided by the appellant if the appellant wants to rely on a transcript on appeal. The court held in Abdi v. Canada that, even in a situation where the appellant did not have the means to have a transcript prepared, the RAD was not obliged to assist the appellant in meeting this requirement by producing and providing a transcript itself.

The IRB has a policy and objective of producing transcripts for all hearings that last more than two hours. The court held in Abdi v. Canada that it was procedurally fair for the RAD to rely on such a transcript which had not been provided to the appellant. This was so as the evidence in question was the applicant’s own and he had been provided with a recording of that testimony. While members of the public are not legally entitled to transcripts and documents from RAD proceedings, available transcripts are shared when requested by appellants and their counsel. That said, while the RAD produces transcripts for all English hearings, as of 2022 it did so for only 37.5% of French hearings. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

Rule 3(3)(b) is to be read in conjunction with Rule 3(3)(g)(ii) which provides that the appellant may, as an alternative to relying on a transcript, point to specific sections or an "audio or other electronic recordings of the Refugee Protection Division hearing".

=== Rule 3(3)(c): The appellant's record must contain any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal === RAD Rule 3(3)(c) provides that the appellant's record must contain any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal. These documents need not be assessed as new evidence in accordance with subsection 110(4) of the Immigration and Refugee Protection Act. Instead, the RAD is to consider whether the RPD was correct to exclude them. If they were improperly excluded, then the RAD may consider them.

For documents provided to the RPD at or before a hearing, but not within required timelines, the relevant RPD rule is number 36: Canadian Refugee Procedure/RPD Rules 31-43 - Documents. For documents provided after a hearing, but prior to the RPD rendering its decision, the relevant RPD rule is number 43: Canadian Refugee Procedure/RPD Rules 31-43 - Documents.

Placing the onus on the appellant to provide such documents in the appellant's record relates to RAD Rule 21(3)(c), which provides that the Refugee Protection Division record is to contain all documentary evidence that the Refugee Protection Division accepted as evidence, during or after the hearing, but that it need not contain evidence that was not accepted. See: Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals. If the rejected documents are not before it, the RAD cannot review whether the RPD was correct to exclude the evidence.

Rule 3(3)(e): The appellant's record must contain any documentary evidence that the appellants want to rely on in the appeal, but this is subject to rules on admitting new evidence
Rule 3(3)(e) provides that the appellant's record must contain any documentary evidence that the appellants want to rely on in the appeal, but where such evidence is new evidence, it must be admissible as per IRPA s. 110: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division. The phrase "documentary evidence" implies that where "evidence" is used without modification elsewhere in the rules, it can include both documentary evidence and non-documentary evidence, such as oral evidence. See also RAD Rule 24, which refers to "written evidence", a subset of all "evidence": Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals.

All evidence that the RPD accepted as evidence is part of the RPD record and will be provided to the RAD by the RPD under rule 21 of the RAD Rules. Therefore, an appellant does not have to include this evidence in their appellant's record.

=== Rule 3(3)(f) provides that an appellant's record must contain any law, case law or other legal authority that the appellant wants to rely on in the appeal, but citations to Canadian court decisions suffice === Rule 3(3)(f) provides that an appellant's record must contain "any law, case law or other legal authority that the appellant wants to rely on in the appeal". While new evidence must be in printed form, not a simple reference to an Internet link, this principle does not apply to the submission of Canadian caselaw as a legal authority. Copies of Canadian court decisions do not need be appended to an appellant's memorandum. In practice, a citation suffices. This flows from the requirement that cases should be decided based on all of the law that binds the Board and the reasonable expectation of parties that judicial notice will be taken of published decisions in Canadian judicial proceedings. That said, judicial notice cannot be taken of foreign law and so copies of foreign laws or judgments that a party wishes to rely on should normally be appended. See further: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge.

Rules 3(3)(e) and 3(3)(f): Legal authorities may be distinguished from evidence that an appellant wants to rely on
Rule 3(3)(f) provides that an appellant's record must contain "any law, case law or other legal authority that the appellant wants to rely on in the appeal". This rule is to be distinguished from Rule 3(3)(e), which provides that an appellant's record must also contain "any documentary evidence that the appellant wants to rely on in the appeal". In this way, legal authorities may be considered distinct from documentary evidence that an appellant seeks to rely on. While some documents clearly fall into one category or the other, often whether a document is evidence or a legal authority is ambiguous and may depend on the proposition which the appellant aims to establish from the document. As noted in Basra v. Canada, the hallmark of a document properly admitted pursuant to Rule 3(3)(f) is that it is either an authority in law or else it interprets the law. Where an applicant is referring to a document as objective evidence in support of their factual assertions, the document is properly considered under Rule 3(3)(e) and the accompanying new evidence provisions of the Act. Some examples which highlight this dichotomy follow:

 * UNHCR guidelines may be considered legal authority or evidence: The Federal Court accepted in Osemwenkhae v. Canada that "UNHCR Guidelines are not new documents in the sense of being new evidence but rather should have been introduced as doctrinal or legal support for [the appellant's] position." But see Valdez v. Canada which held it was reasonable for the RAD to consider the UNHCR Handbook under the new evidence framework of subsection 110(4) of the IRPA in a circumstance where the appellant had argued that the Handbook was new evidence justifying an oral hearing.
 * Prior cases may be considered legal authority or evidence: Prior tribunal decisions legal cases, and decisions of international bodies such as the United Nations Committee Against Torture may be considered legal authorities and not evidence. However, in Ismailov v. Canada the Appellant submitted a decision from the European Court of Human Rights. The RAD declined to admit it because it found that it was not bound by jurisprudence outside of Canada. The court concluded that this was in error because the decision was submitted as evidence, not a legal authority:"In my view, the fact that the RAD is not bound by jurisprudence outside of Canada is irrelevant. The Applicant did not submit this evidence for a point of law, but rather for its factual findings regarding the country conditions in Uzbekistan. In other words, this decision formed part of the new evidence that was submitted to the RAD. Thus, the RAD erred by dismissing it out of hand and refusing to determine whether the decision satisfied the test for new evidence."But see the following commentary to RPD Rule 43, including a case concluding that under that rule past tribunal decisions should not be considered evidence: Canadian Refugee Procedure/Documents.

 * Foreign law is considered to be a question of fact: Foreign law is considered by Canada's legal system to be a question of fact. In contrast, the content of Canada’s international legal obligations has usually been held to be a question of law.
 * Reports discussing and critiquing IRB decisions may be considered legal authority or evidence: In Basra v. Canada, the appellant submitted a 2004 report entitled Comprehensive Discussion of the Internal Flight Option for Punjabi Sikh Survivors of Political Rape and other Forms of Institutionalized Violence to the RAD as a legal authority. The RAD concluded that the document was not admissible as jurisprudence. The Federal Court upheld this decision, concluding that the content in the report was "factual in nature, containing discussion and opinion based on research and experience" and noting that the document was "analogous to many documents typically contained in a national documentation package" and that in his appeal submissions the applicant referred to the document as objective evidence in support of his factual assertions and not as jurisprudence or expressions of law.

Rule 3(3)(g)(i): The appellant's record must contain a memorandum with submissions regarding the errors that are the grounds of the appeal
Rule 3(3)(g) provides that the appellant's record must contain a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, and (ii) where the errors are located in the reasons for the Refugee Protection Division's decision or in a recording of the Refugee Protection Division hearing. A corollary of the obligation to identify such errors is that an applicant cannot reasonably fault the RAD for not going beyond the grounds of appeal or for not providing extensive reasons regarding the grounds of appeal that the applicant did not previously challenge. However, it also cannot be presumed that unchallenged findings are correct. Such a presumption would interfere with the RAD’s statutory obligation. As the court held in Derxhia v. Canada, "While it may be unwise for an appellant to leave credibility determinations by the RPD unchallenged, this does not relieve the RAD of its role in determining the correctness of the RPD’s decision in all relevant matters." That said, the RAD also cannot be expected to examine every piece of evidence and try to draw out arguments that could support an asylum claim.

Where the grounds of appeal are not sufficiently clear in accordance with paragraph 3(3)(g) of the RAD Rules, it is open to the RAD to include in its analysis only the most intelligible submissions. Furthermore, it is not sufficient for an appellant "to throw cases against the wall in the hope that they will stick, or to leave to the reviewing court the task of establishing somehow the connection. The connection of the dots on the page must be done by those who suggest some connection. ... [A] collection of cases in search of some connection with the facts of this case did not result in a cogent and persuasive argument without an articulation of what that connection may be."

The memorandum with submissions discussed in subrule (g) is to be distinct from the documentary evidence that the appellant wants to rely on in the hearing discussed in subrule (e). That said, at times there may be overlap between these. Where an appellant submits an affidavit on appeal that is not new evidence pursuant to subsection 110(4) of the IRPA, but is instead more akin to submissions on the errors that are the grounds of the appeal, the RAD is entitled to treat the affidavit as submissions. Furthermore, the fact that the RAD states that it is treating such an affidavit as submissions does not mean that the RAD errs by referring to the material in the appellant's affidavit as an example of an inconsistency in the statements provided by the appellant that can properly detract from the appellant's credibility.

See also:

 * Canadian Refugee Procedure/The Board's inquisitorial mandate
 * Canadian Refugee Procedure/The Board's inquisitorial mandate
 * Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division

Rule 3(3)(g)(iii): The appellant's record must contain a memorandum with submissions regarding how any documentary evidence referred to in paragraph (e) relates to the appellant
The requirement in RAD Rule 3(3)(g)(iii) that the appellant's record contain a memorandum with submissions regarding how any newly submitted documentary evidence relates to the appellant has been interpreted as a requirement that the appellant establish its relevance. In the words of the Federal Court of Appeal, this is a basic condition for the admissibility of any piece of evidence, and it would be difficult to imagine the introduction of new evidence being somehow exempt from this criterion. Indeed, subparagraphs 3(3)(g)(iii) and 5(2)(d)(ii) of the Refugee Appeal Division Rules, SOR/2012-257 implicitly allude to this by providing that both the appellant’s memorandum and memorandum in reply must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also “how that evidence relates to the appellant” (“la façon dont ils sont liés à l’appelant”). See: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division.

RAD Rule 4: Intervention by the Minister
Intervention by the Minister

Notice of intervention 4 (1) To intervene in an appeal at any time before the Division makes a decision, the Minister must provide, first to the appellant and then to the Division, a written notice of intervention, together with any documentary evidence that the Minister wants to rely on in the appeal.

Content of notice of intervention (2) In the notice of intervention, the Minister must indicate (a) counsel’s contact information; (b) the identification number given by the Department of Citizenship and Immigration to the appellant; (c) the appellant’s name, the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that the Minister received the written reasons for the decision; (d) whether the Minister is relying on any documentary evidence referred to in subsection 110(3) of the Act and the relevance of that evidence; and (e) whether the Minister is requesting that a hearing be held under subsection 110(6) of the Act, and if the Minister is requesting a hearing, why the Division should hold a hearing and whether the Minister is making an application under rule 66 to change the location of the hearing.

Minister’s intervention record (3) In addition to the documents referred to in subrule (1), the Minister may provide, first to the appellant and then to the Division, the Minister’s intervention record containing the following documents, on consecutively numbered pages, in the following order: (a) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript in the appeal and the transcript was not provided with the appellant’s record, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate; (b) any law, case law or other legal authority that the Minister wants to rely on in the appeal; and (c) a memorandum that includes full and detailed submissions regarding (i) the grounds on which the Minister is contesting the appeal, and (ii) the decision the Minister wants the Division to make.

Length of memorandum (4) The memorandum referred to in paragraph (3)(c) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof documents were provided (5) The documents provided to the Division under this rule must be accompanied by proof that they were provided to the appellant.

Rule 4: To intervene in an appeal the Minister must provide a written notice of intervention
Rule 4(1) provides that if it wants to intervene in an appeal, the Minister must provide a written notice of intervention, together with any documentary evidence that the Minister wants to rely on in the appeal. Where the Minister attempts to provide documentary evidence or argument without such a written notice of intervention that meets the requirements of RAD Rule 4, the Division has in the past refused to accept the document.

RAD Rule 5 - Reply
Reply to Minister’s intervention 5 (1) To reply to a Minister’s intervention, the appellant must provide, first to the Minister and then to the Division, a reply record.

Content of reply record (2) The reply record must contain the following documents, on consecutively numbered pages, in the following order: (a) all or part of the transcript of the Refugee Protection Division hearing if the appellant wants to rely on the transcript to support the reply and the transcript was not provided with the appellant’s record or by the Minister, together with a declaration, signed by the transcriber, that includes the transcriber’s name and a statement that the transcript is accurate; (b) any documentary evidence that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or by the Minister; (c) any law, case law or other legal authority that the appellant wants to rely on to support the reply and that was not provided with the appellant’s record or by the Minister; and (d) a memorandum that includes full and detailed submissions regarding (i) only the grounds raised by the Minister, (ii) how any documentary evidence referred to in paragraph (b) meets the requirements of subsection 110(4) or (5) of the Act and how that evidence relates to the appellant, and (iii) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held and they did not include such a request in the appellant’s record, and if the appellant is requesting a hearing, whether they are making an application under rule 66 to change the location of the hearing.

Length of memorandum (3) The memorandum referred to in paragraph (2)(d) must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Proof document was provided (4) The reply record provided to the Division must be accompanied by proof that it was provided to the Minister.

Time limit (5) Documents provided under this rule must be received by the Division no later than 15 days after the day on which the appellant receives the Minister’s notice of intervention, the Minister’s intervention record, or any additional documents provided by the Minister, as the case may be.

RAD Rule 6: Extension of Time
Extension of Time

Application for extension of time to file or perfect 6 (1) A person who is the subject of an appeal who makes an application to the Division for an extension of the time to file or to perfect an appeal under the Regulations must do so in accordance with rule 37, except that the person must provide to the Division the original and a copy of the application.

Copy provided to Minister (2) The Division must provide a copy of an application under subrule (1) to the Minister without delay.

Content of application (3) The person who is the subject of the appeal must include in an application under subrule (1) (a) their name and telephone number, and an address where documents can be provided to them; (b) if represented by counsel, counsel’s contact information and any limitations on counsel’s retainer; (c) the identification number given by the Department of Citizenship and Immigration to them; and (d) the Refugee Protection Division file number, the date of the notice of decision relating to the decision being appealed and the date that they received the written reasons for the decision.

Accompanying documents — filing (4) An application for an extension of the time to file an appeal under subrule (1) must be accompanied by three copies of a written notice of appeal.

Accompanying documents — perfecting (5) An application for an extension of the time to perfect an appeal under subrule (1) must be accompanied by two copies of the appellant’s record.

Application for extension of time to reply (6) A person who is the subject of an appeal may make an application to the Division for an extension of the time to reply to a Minister’s intervention in accordance with rule 37.

Factors — reply (7) In deciding an application under subrule (6), the Division must consider any relevant factors, including (a) whether the application was made in a timely manner and the justification for any delay; (b) whether there is an arguable case; (c) prejudice to the Minister, if the application was granted; and (d) the nature and complexity of the appeal.

Notification of decision on application (8) The Division must without delay notify, in writing, both the person who is the subject of the appeal and the Minister of its decision with respect to an application under subrule (1) or (6).

The Regulation sets out the process for extending the time limit for filing an appeal
RAD Rule 2(4) provides that the notice of appeal provided under this rule must be received by the Division within the time limit for filing an appeal set out in the Regulations. Section 159.91(2) of that regulation sets out the criteria to be granted an extension to that time limit: Extension 159.91 (2) If the appeal cannot be filed within the time limit set out in paragraph 1)(a) or perfected within the time limit set out in paragraph (1)(b), the Refugee Appeal Division may, for reasons of fairness and natural justice, extend each of those time limits by the number of days that is necessary in the circumstances. In short, this provision contains three elements:

 * 1) It must not be possible for the appeal to be filed and perfected within the time limits of, respectively, 15 and 30 calendar days. Under this element, the party seeking an extension of time must provide an explanation for the delay and must show a continuing intention to appeal during the delay.
 * 2) An extension must be for the number of days necessary in the circumstances. This requirement suggests that the delay should be as short as possible or, in other words, that every day of delay should be justified. The reference to "circumstances" implies an individualised assessment of the circumstances in each particular request for an extension of time.
 * 3) Any extension must be for reasons of fairness and natural justice. Jurisprudence has established four factors to be considered in the applications for extension of time made before courts or administrative tribunals. These factors are not exhaustive and other factors may be considered, such as, for example, the complexity of an appeal, a factor mentioned in RAD Rule 6(7). All of the factors do not have to be met. The appropriate weight must be given to each factor in the context of a particular case. The four factors are to be applied in order to determine whether fairness and natural justice, in the circumstances, require an extension of time for a particular number of days:

a) there was and is a continuing intention on the part of the party presenting the motion to pursue the appeal;

b) the subject matter of the appeal discloses an arguable case;

c) there is a reasonable explanation for the defaulting parties delay; and

d) there is no prejudice to the other party in allowing the extension. For more context to this part of the regulations, see: Canadian Refugee Procedure/IRPR s. 159.91: Appeal to Refugee Appeal Division.

RAD Rule 7: Decision without further notice
Disposition of an Appeal

Decision without further notice 7 Unless a hearing is held under subsection 110(6) of the Act, the Division may, without further notice to the appellant and to the Minister, decide an appeal on the basis of the materials provided (a) if a period of 15 days has passed since the day on which the Minister received the appellant’s record, or the time limit for perfecting the appeal set out in the Regulations has expired; or (b) if the reply record has been provided, or the time limit for providing it has expired.

Rule 7 provides that the Division may, without further notice, decide the appeal, but further notice is required if the appeal is decided on a new ground
Rule 7 of the RAD Rules provides that, where a hearing is not warranted, the RAD may, “without further notice to the appellant and to the Minister, decide an appeal on the basis of the materials provided.” The Federal Court has recognized that, notwithstanding this rule, deciding an appeal on a new ground without first giving notice to the parties that the issue is in play can breach the requirements of procedural fairness. The duty of procedural fairness requires the RAD to provide the appellant with an opportunity to make submissions when considering an issue that was not raised by the appellant or by the RPD. Justice Hughes expressed this exception to the general rule as follows in Husian v Canada: “The point is that if the RAD chooses to take a frolic and venture into the record to make further substantive findings, it should give some sort of notice to the parties and give them an opportunity to make submissions.” Furthermore, where the Division raises a new issue, the Minister should be given notice of the new issue, even if they are not a party to the proceeding.

When may the RAD raise a new issue?
The RAD is obliged to conduct an independent review of the case, focusing on the errors identified by the appellant. However, the RAD has a broad discretion to raise new issues where doing so will bring finality to an issue. See: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division.

What is a new issue requiring notice?
A new issue can be identified as one that (1) is legally and factually distinct from the grounds of appeal raised by the parties and cannot reasonably be said to stem from the issues raised on appeal, and (2) is an issue where the RPD made no determination. If the RAD will decide a matter on a ground that is a new issue, including by making additional substantive findings based on the record, which were not addressed in the RPD decision and not raised by the parties on appeal, then procedural fairness requires that notice and an opportunity to make submissions be given.

Essentially, this protects persons who are the subject of an appeal and the Minister against unfair surprise. As in all matters of procedural fairness, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond. Notice should be provided whenever new or additional arguments, reasoning, or analysis unknown to the parties is being considered by the Division.

This said, “issues that are rooted in or are components of an existing issue” are not “new issues” necessitating such a notice. Furthermore, where an RPD finding is not challenged on appeal, then the RAD may uphold such non-challenged findings. See: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal.

Whether or not the issue was explicitly raised as an issue at the beginning of the RPD hearing by that panel is not determinative. Indeed, some issues are said to always be at issue in every claim, and need not be identified as a distinct issue by the RPD: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing. Regardless of the fact that certain issues, such as prospective risk, are central issues in any refugee protection claim, if the RPD did not make a clear and definitive finding on the issue, and it was not one of the grounds of appeal, then it would be unfair for a panel to dismiss a claim on that basis without providing notice.

Categories of cases in which the Board may err if notice is not provided include:

That said, there is no requirement for the RAD to seek further submission when it assesses and weighs an applicant's own earlier evidence.
 * Where the Board considers new evidence. Where new evidence is being considered on appeal, notice should be provided. For example, this applies where new country condition documentation comes up after the appeal has been perfected, such as a new NDP that is relevant. Specifically, the RAD is required to disclose the version of the NDP it used if the following two factors are present: (1) the version of the NDP that the RAD used to make its decision was not available or accessible to the public when the refugee protection claimant perfected their appeal and made their submissions, and (2) the most recent information in this version of the NDP is sufficiently different, novel and significant and shows a change in the general country conditions. For more discussion and nuance on this, see: Canadian Refugee Procedure/The Board's inquisitorial mandate, and Canadian Refugee Procedure/The right to be heard and the right to a fair hearing, and also Canadian Refugee Procedure/RPD Rules 31-43 - Documents. However, because the RAD has fact-finding authority, and may make additional findings or even different findings than the RPD in assessing the evidence, doing so does not in and of itself elevate such findings to a new issue or trigger a breach of procedural fairness. Referring to additional evidence in the record which supports the conclusions reached by the RPD does not amount to examining a "new question".
 * Where the Board considers a new legal issue. The RAD must provide notice where it wants to make a finding on an issue where the RPD did not make a clear and definitive finding on the issue and it was not among the grounds of appeal advanced by the parties. This includes where the RAD makes a finding on state protection, IFA, nexus, lack of prospective risk, a reconsideration of a claimant's credibility, and exclusion. This applies whenever the RPD did not make a clear and definitive finding on the issue and the issue was not raised in the appeal memoranda of the parties, regardless of whether the issue was canvassed by the RPD at the hearing or not raised at the initial hearing at all, and regardless of whether the issue was not discussed by the RPD at all or was mentioned in passing in the RPD's reasons but not relied upon. The fact that the Minister provides a Notice of Intervention to the RAD and the person who is the subject of the appeal, along with arguments regarding an issue, suffices as "notice" that that issue is "in play". See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.
 * Where the Board makes a dditional substantive findings on a legal issue that is at issue in the appeal. In some circumstances, the Division should provide notice before making additional substantive findings on a legal issue that is at issue in the appeal, even though the issue was raised in the parties' appeal memoranda. That said, this area of the law is unclear and there are decisions that offer conflicting conclusions on the necessity of notice in such circumstances. Some discussion of the cases follows:
 * Credibility: While the RAD cannot raise a new issue without notice to the parties, it is entitled to make independent findings of credibility against an appellant without questioning the claimant or providing a further opportunity to make submissions where the following criteria are met: a) credibility was at issue before the RPD; b) the RPD’s findings are contested on appeal; c) the credibility concerns from the RAD are linked to the applicant’s appeal submissions; and d) the RAD’s findings arise from the evidentiary record. For example, in Popoola v. Canada the court upheld a RAD decision which considered two additional credibility concerns (regarding the applicants’ US visas and the alleged presence of a neighbour during a break-in at their home) in a case where credibility was already at issue. Similarly, in Sun v. Canada, the court found no breach of procedural fairness where the RAD raised new credibility issues about alleged inconsistencies in the claimant's evidence that had not been considered by the RPD and for which she was not given notice. The court held that the RAD was entitled to find an additional basis to question the applicant’s credibility using the record that was before the RPD. This is so even where the document that the RAD relies upon to make such a credibility finding is "[one] out of 125 items in the National Documentation Package". In Ahmed v. Canada, the court upheld the RAD making an additional negative credibility conclusion related to delay in claiming where credibility was at issue on appeal, even though delay was not discussed by the RPD and the appellant was not specifically given notice regarding delay on appeal and invited to make submissions. In Onwuanagbule v. Canada, in contrast, the court held that the RAD should provide notice where it makes negative credibility inferences with respect to areas that were not addressed either by the RPD or in the appellant’s memorandum (even where credibility is generally raised on appeal).
 * Genuineness of documents: There appear to be two approaches to this in the jurisprudence:
 * One approach holds that the RAD is tasked with undertaking its own review of evidence, and may make additional or different credibility findings with respect to a document without this being a new issue that triggers a breach of procedural fairness. The RAD does not have a duty to confront a claimant about its concerns related to documents provided by the claimant where the issues raised and considered by the RAD are linked to the parties’ submissions or the RPD’s findings. For example, in Zerihaymanot v. Canada, the court held that the RAD did not raise a new issue when it commented on additional ways in which the applicant’s birth certificate did not match the samples in the NDP that were not identified by the RPD (absence of signing official’s name and language in document). This approach was also endorsed by Justice Little in Kabunga v. Canada, where the court concluded that it was not unfair to make a new finding that a document had been fabricated to advance the claim.
 * A different approach holds that notice should be provided where the RAD raises new concerns about the genuineness of evidence tendered before the RPD which had not been discussed or put to the appellant prior. The RAD cannot give further reasons based on its own review of the record, if the refugee claimant has not had the chance to address them. For example, in Porosh v. Canada the RPD had concluded that an arrest warrant submitted by the claimant was fraudulent. Justice Go held that it was an error for the RAD to provide an additional reason to buttress this finding which had not been expressly put to the appellant (that the document did not include an authorizing signature from a judge, a requirement discussed in the NDP). In Warsame v. Canada, while the RPD had raised doubt about the veracity of the aunt’s affidavit, it did not find the document to be fraudulent. The RPD's findings related to the affidavit were challenged on appeal and the RAD overturned some of the RPD’s findings on the aunt’s affidavit. However, it went further than the RPD in its negative assessment and found the document to be fraudulent. Justice Go held that in doing so, the RAD breached the duty of procedural fairness as the applicant could not have anticipated the fraudulent finding as a live issue for the RAD.
 * Forward-facing risk: The courts have been prepared to accept in many cases that the forward-looking nature of the risk allegedly faced by the applicant was an inherent or implicit component of the RPD’s analysis, and that where expressly discussed in the appellant's written memorandum to the RAD, notice that a new issue was going to be considered was consequently unnecessary. Similarly, in Lopez v. Canada, the court accepted that the RAD was not required to advise the applicant that it would analyze the question of whether the alleged discrimination was sufficiently serious, repetitive or systematic to constitute persecution given that "this issue underlies the question of whether the applicant runs a prospective risk of persecution should she return to Mexico [and] it was therefore at the heart of her claim for refugee protection." However, in Mehra v. Canada, the court concluded that the risk that the Appellant faced in their city that was considered their "home base" based on the address that they used in their documents was a new issue requiring notice because the Appellant had not ever lived in that city (or their country) and the RPD had not canvassed this issue.
 * IFA: Notice should be provided where the RAD considers an IFA in a city not considered by the RPD, even where the RPD had raised IFA as an issue. However, notice need not be given on every chain of reasoning regarding risk in an IFA location. After all, issues that are rooted in or are components of an existing issue are not “new issues”. For example, the court has held that in considering how the passage of time may have affected an individual's risk in an IFA location, the RAD did not raise an issue that was legally and factually distinct from the issue on appeal.
 * Incompetence of counsel: The Board does not err by dismissing an argument that past counsel acted incompetently where the party did not comply with the Board's practice notice on point, including having notified the former counsel. Doing so is not raising a new issue that requires independent notice. See: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record.

See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

The notice must be sufficiently clear and specific
Any notice that is provided must be sufficiently specific such that the parties can appreciate the real concern of the RAD. For example, in Nasr v. Canada, the court concluded that the panel's notice regarding a credibility issue that the RAD was going to consider, but the RPD had not, was "vague" such that "the Applicants would have been unaware that the real concern of the RAD". As the credibility issue "had to be clearly put to [the Appellants] for response" and it was not, the court overturned the decision. In a case where no basic description of the RAD’s areas of concern with respect to credibility was provided, the court held that the applicant "was required to try to identify what these credibility concerns might be and to make anticipatory submissions, rather than providing submissions in response to specific credibility concerns." The court found that this was not a fair procedure.

However, such notice requirements do not extend to requiring the Board to engage in an ongoing dialogue with a claimant. For example, in Savit v. Canada, the court concluded that once it had notified the applicant, it was reasonable for the RAD to point out a significant contradiction between the applicant’s new statement made in response to the notice and her testimony before the RPD. The court held that if the applicant contradicted her initial testimony in addressing the RAD’s concerns, she could not criticize the RAD for noticing this contradiction. In the court's view, the RAD was not required to give a second notice to give the applicant an opportunity to be confronted with her own contradictions; the requirement to give notice did not oblige the RAD to create a dialogue with her.

A principle that has emerged from non-refugee caselaw is that parties should have knowledge of the essential issues in dispute so they can meaningfully respond. But the right to be heard does not require a tribunal to provide the parties with a further opportunity to make legal submissions every time a legal argument arises in deliberations that was not mentioned by the parties.

See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

How long should a party have to respond to a notice
There does not appear to be a specific rule that sets out how long a party has to respond to a new issue notice. That said, the Refugee Appeal Division has issued a practice notice entitled providing post-perfection documents to the Minister when not a party to the appeal. It specifies that the Minister will be provided with 10 days to respond to any new documents from the person who is the subject of the appeal. As such, it could be considered that this practice notice establishes 10 days as a norm. Furthermore, it could be argued that this creates a legitimate expectation for the person who is the subject of the appeal that a claim will not be decided within 10 days of them providing a new document in a circumstance where the Minister is not a party and has not responded to it, or otherwise waived their right to respond to it.

See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.