Standard of Review in Refugee Appeal Division Hearings

Meurrens LawRefugees

On December 15, 2012, the Refugee Appeal Division (the “RAD“) began considering appeals against decisions from the Refugee Projection Division (the “RPD“) to allow or reject refugee claims.  According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are:

  • Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal.
  • You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record.
  • The Minister may choose to intervene at any point in the appeal.
  • The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held.

Almost immediately there was uncertainty over what the role of the RAD was.  The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals:

  • that deference is owed to RPD findings of fact and questions of mixed law and fact;
  • that deference is owed to the RPD where the issue in a claim is factual;
  • that the role of the RAD was to ensure a fair and efficient adjudication and that refugee protection be granted where appropriate. As such, the RAD can substitute the RPD’s determination with its own;
  • that in some cases the RAD, in order to bring finality to the refugee process, may be entitled to show less deference to the RPD;
  • that while both the RPD and the RAD are specialized tribunals, the RPD had advantages in fact finding (particularly on credibility) which suggests deference; and
  • that the failure to show deference to the RPD would undermine the RPD’s process.

In Huruglica v. Canada (Citizenship and Immigration Canada), 2014 FC 799 the Federal Court determined that this was an incorrect approach.

In reaching his decision, Justice Phelan made the following observations:

  • That the RAD has equal or greater expertise to the RAD in the interpretation of country condition evidence, and that accordingly, there is no reason for the RAD to defer to the RPD on this type of assessment.
  • That if the standard of review was reasonableness, then the RAD would merely duplicate what occurs on a judicial review in Federal Court.  This would be inconsistent with the creation of the RAD.
  • That in Parliament, the Government of Canada stated that the person of the RAD was to allow unsuccessful RPD claimants to have a full fact-based appeal at the RAD.
  • That in creating an internal appellate body, within the executive branch of government, the principle of standard of review, a function of the division of powers between the executive and the judiciary, is of lesser importance and applicability.
  • That the RAD must conduct an independent assessment of the application in order to arrive at its own opinion.
  • That the RAD has the sole and exclusive jurisdiction to hear and determine all questions of law and fact in respect of proceedings brought before it pursuant to s. 162 of the Immigration and Refugee Protection Act (“IRPA”).
  • That the RAD is not bound by any legal or technical rules of evidence pursuant to IRPA ss. 171(a.2) and ss. 175(1)(b).
  • That the RAD must conduct a hybrid appeal.  It must review all aspects of the RPD’s decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection.  Where its assessment departs from that of the RPD, the RAD must substitute its own decision.

It is important to note that Justice Phelan did state that deference to the RPD may be owed where a witness’ credibility is critical or determinative.  He wrote:

The principal reason articulated for according deference to RPD findings is that the RPD is required to hold an oral hearing, while the RAD may only hold such a hearing in certain circumstances.

That notion may well justify deference to a RPD’s decision in a circumstance where a witness’ credibility is critical or determinative; however, that is not the case here. The witnesses were found to be straightforward and it was the matter of not seeking asylum when in the US that undermined their claims. There was no adverse finding of credibility. Therefore, the policy rationale for deference is not sustainable except in credibility issues.

In conducting its assessment, [the RAD] can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a “palpable and overriding error”.

Justice Phelan, recognizing the significance of his ruling, certified the following question:

“What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division?”

Federal Court of Appeal Decision

In the Federal Court of Appeal, Justice Gauthier reformulated the question as:

Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD’s findings of fact (or mixed fact and law), which involved no issue of credibility?

He answered:

No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred.

His concluding paragraph stated:

I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.