The Refugee Appeal Division (RAD) came into force on December 15, 2012. The level of deference owed by the RAD to decisions from the Refugee Protection Division (RPD) is not yet clear. However, legislation and legal commentary tend to show that “while not a hearing de novo, the RAD would clearly not be expected to show the same level of deference mandated upon judicial review.”
The RAD provides a new right of appeal for claims heard at the Refugee Protection Division (RPD). Under s. 110(1) “a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact, or of mixed law and fact, to the RAD against a decision of the RPD to allow or reject the person’s claim for refugee protection.”
i – Differences between the RAD and Judicial Review
The key differences between the RAD and the judicial review at the Federal Court are:
- Decisions can be appealed as a right; there is no requirement to obtain leave;
- Appeals to the RAD can be based on a question of fact or mixed fact and law, whereas judicial review is limited to errors of law;
- The RAD can substitute its own decision for a decision made by the RPD; whereas the Federal Court can only remit a case to be re-heard by the RPD; and
- Decisions of the RAD can be reviewed by the Federal Court, whereas there is no review of a decision from the Federal Court unless the judge certifies that the case raises a question of general importance.
ii – Procedure of an Appeal at the RAD
Appeals to the RAD will be primarily paper-based, with oral hearings being the exception (s. 110(3)). Oral hearings will be held if there is documentary evidence that
a) raises a serious issue with respect to the credibility;
b) is central to the decision with respect to the refugee protection claim; and
c) if accepted, would justify allowing or rejecting the refugee protection claim.
The Minister is not subject to these restrictions. However, if the Minister files new evidence the subject of the appeal may respond. The language regarding oral hearings at the RAD is permissive. There is no obligation for the RAD to hold an oral hearing (s. 110(6)).
An appellant has 15 days to file the notice of appeal from the date of the written decision. The perfected appeal must be submitted within 30 days (s. 159.91(1) and (2)). These timelines will likely limit what new evidence can be accepted.
The information required for an appeal is similar to the information required for a judicial review leave application. Therefore, if the appellant’s written submissions do not contain an arguable case, the RAD will likely dismiss it (Bains v Canada (Minister of Employment and Immigration),  20 Imm LR (2d) 296, 63 FTR 312, 40 ACWS (3d) 657 (FC)).
Most decisions will be made by a single member, unless the Chairperson of the Immigration and Refugee Board (IRB) thinks that a 3 member panel is necessary (s.163).
iii – Powers of the RAD
After considering an appeal, the RAD may make one of 3 decisions (s. 111(1). It can:
a) confirm the determination of the RPD;
b) set aside the determination and substitute a determination that, in its opinion, should have been made; or
c) refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.
S. 111(2) discourages referrals back to the RPD.
iv – Deference of RAD to RPD Decisions
There is debate about the level of deference owed by the RAD to RPD decision-makers.
The RAD has a broad power. It can substitute its own findings for those of the RPD and consider appeals on questions of fact, law, and mixed fact and law. However, legislation has also constrained a RAD member’s ability to admit new evidence or to hold oral hearings.
The Immigration Appeal Division (IAD) has de novo jurisdiction in reviewing decisions. There are key differences between the IAD and the RAD. At the IAD, there are no restrictions on new evidence and oral hearings. The admissibility of new evidence may provide the line in determining how much deference is owed to RPD decisions. If no new evidence is brought at the RAD, the credibility findings of the RPD are likely to be shown deference, because the RPD decision-maker saw the claimant first-hand. However, because oral hearings at the RAD will likely deal with issues of credibility, it is arguable that no deference should be given to the findings of the first decision-maker as the RAD member can see the claimant first-hand.
Three other factors suggest that less deference should be owed to the RPD. These are:
- In relation to the RAD the RPD is not a specialized tribunal;
- The appeal to the RAD is a full appeal; it is not limited to only issues of law; and
- RAD has the broad power of being able to substitute its own findings for that of the RPD, suggesting that it has the ability and expertise to determine the same questions that are before the RPD.
The standard of review at the RAD therefore appears to sometimes lean towards a standard of correctness, where the court can substitute its own view.
v – Deference of Federal Court to RAD Decisions
Assuming that the RAD is staffed by highly qualified decision-makers, it is likely that Federal Court judges will accord greater deference to RAD decisions than it would give to past IRB decisions.
 Peter Edelmann, “Refugee Appeal Division” paper presented at: at the Continuing Legal Education Conference (Refugee Lawyers Groups: Vancouver, March 3, 2012) 10.
 “Impact of Legislative and Jurisprudential Developments: Appeal to New Refugee Appeal Division as a Right” Immigration and Refugee Legal Aid Cost Drivers (Department of Justice: Ottawa, April 30, 2013).
 Lobat Sadrehashemi and Jennifer Goodwin-Ellis, “The Refugee Appeal Division: An Unappealing Process” paper presented at the Continuing Legal Education Conference (Refugee Lawyers Groups: Vancouver, March 3, 2012) 12 [Sadrehashemi].
 Ibid, 14.