You lost at the Refugee Protection Division and appealed to the Refugee Appeal Division. You filed your record, and you were waiting for a decision. Then a letter arrived from the RAD saying that the Minister of Citizenship and Immigration has given notice of intervention, with a package of documents and submissions attached.
For most appellants, this is unexpected and alarming. It does not mean the appeal is lost. It does mean the appeal has changed shape, and that your response in the next few weeks matters.
Who the Minister is in a RAD appeal
At the RPD, the Minister is not a party to most claims. The hearing is between the claimant and the Board. The Minister may choose to participate, but usually does not.
At the RAD, the picture is similar. The appeal is normally decided on the record between the appellant and the tribunal. However, the Minister has the right to intervene in any appeal at any time before the decision is made. When that happens, counsel from the Canada Border Services Agency or the Department of Justice files a notice, and from that point on the appeal has an opposing party.
Why the Minister intervenes
Interventions are not random. They are triggered by something in the file that the Minister’s counsel considers worth contesting. Common reasons include:
- Credibility. The Minister may argue that the RPD’s negative credibility findings were correct and should be upheld, or may point to inconsistencies the RPD did not address.
- Exclusion. Where there is evidence that the appellant may have been involved in serious crimes, war crimes, or crimes against humanity, or has protection in another country, the Minister may argue the appellant should be excluded from refugee protection entirely. This can arise even where the RPD did not consider exclusion.
- Identity or documents. Concerns that identity documents or supporting documents are not genuine.
- New information. Sometimes the Minister has information the RPD never saw, such as records from another country, immigration history elsewhere, or evidence of travel that contradicts the claim.
The Minister’s intervention will usually include written submissions and may include new evidence. Both are served on the appellant.
What you are entitled to do
The RAD’s rules give the appellant the right to reply. The reply must be filed within a fixed number of days of receiving the Minister’s materials, and the deadline is short. If it is missed, the RAD may decide the appeal without hearing from you on the Minister’s points.
The reply may include:
- written submissions answering each argument the Minister has raised;
- evidence responding to the Minister’s evidence, subject to the RAD’s rules on new evidence;
- a request for an oral hearing, if the Minister’s evidence raises a serious credibility issue that is central to the decision.
The last point is important. RAD appeals are usually decided on paper. But where new evidence raises a credibility issue that could be decisive, the RAD may hold a hearing. A Minister’s intervention that introduces new documents is one of the situations where that argument can succeed.
How to approach the reply
The Minister’s submissions are professionally drafted and can read as though the case is already decided. Treat them as advocacy. The task is to answer them point by point, with reference to the record.
Where the Minister relies on new evidence, examine where it came from, whether it is reliable, and whether it actually says what the Minister claims. Where the Minister argues exclusion, the legal test is demanding: it requires serious reasons to consider that the appellant made a voluntary, significant, and knowing contribution to the crime alleged. Membership in an organisation or presence in a place is not enough on its own. Where the Minister argues credibility, the reply should show why the RPD’s findings were wrong, or why the Minister’s new points do not disturb the core of the claim.
A reply that engages only with the original RPD decision, and ignores what the Minister has raised, leaves the RAD with one side of the argument.
What happens next
After the reply is filed, the RAD decides the appeal. It may confirm the RPD decision, substitute its own decision, or send the matter back for a new hearing. If the RAD dismisses the appeal, the remaining route is judicial review in Federal Court, which we discuss in our post on what to do when the RAD dismisses your appeal.
If you have received a notice of intervention
Do not wait until the deadline is close. The Minister’s package needs to be read carefully, the reply needs to be built on the record, and if a hearing is going to be requested, that request needs to be made properly.
Book a consultation with Kabir & Alam Lawyers. Our refugee law practice responds to Minister’s interventions at the RAD, and we can assess the submissions and prepare your reply.