Chapter 2. Refugee Appeal Division's Standard of Review

2.1. The Refugee Appeal Division's correctness review

In most cases, the RAD applies a correctness standard of review when reviewing RPD findings.^{Note 1}

The record before the RAD should most often contain all the information on which the RPD bases its findings.^{Note 2} This includes any recording of the RPD hearing.^{Note 3} As a result, the RPD and the RAD are usually similarly situated^{Note 4} and the RPD will rarely have a meaningful advantage deserving of deference.^{Note 5}

Huruglica sets out that on a correctness review, “the RAD does its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred.”^{Note 6} In a correctness review “the decision maker must answer the question exactly as the reviewer deems correct, or hit the bull’s eye.”^{Note 7} There is no deference given to the RPD’s finding on a correctness review.^{Note 8}

Aside from reviewing most RPD findings through a correctness lens, the RAD ensures that the correct determination is made.^{Note 9} With “robust powers of error-correction,”^{Note 10} the RAD may confirm an RPD determination is correct even if it finds the RPD erred in some of its findings.^{Note 11} It would also not be appropriate on a correctness review for the RAD to uphold the RPD’s determination if it did not agree with it.^{Note 12}

That said, a RAD appeal is not a “true de novo proceeding.”^{Note 13} Rather, the RAD is said to conduct a “hybrid appeal”’^{Note 14} and remains “tethered”^{Note 15} to the RPD decision.

2.2. Deference - when the Refugee Appeal Division has a meaningful advantage

The only exception to when the RAD will apply the correctness standard is when the RAD concludes that the RPD enjoyed a “meaningful advantage” in making findings that “require an assessment of the credibility or weight to be given to the oral evidence it hears.”^{Note 16}

Huruglica states that the RPD may enjoy a meaningful advantage over the RAD, but the Court leaves it to the RAD to develop its own jurisprudence on the matter.^{Note 17}

Rozas Del Solar is the leading decision with respect to the circumstances where the RPD may have a meaningful advantage and where the RAD may defer to the RPD’s findings. The Court explained that deference to the RPD may be considered where there is “information to which the RAD would not have access on appeal.”^{Note 18} This may include:

• An aspect of demeanor or physical demonstration that could not be accurately captured in the record before the RAD;^{Note 19}
• A document that was before the RPD but not the RAD (for example, an original identity document that has been lost by the time the RAD renders its decision, or where the RAD does not request an original identity document).^{Note 20} In that case, it may be reasonable for the RAD to defer to the RPD’s finding with respect to the document’s authenticity.^{Note 21}

For the RAD to say the RPD had a meaningful advantage and that it deserved deference due to having information that the RAD does not have access on appeal, the RAD must first ensure the missing information was necessary for the RPD to make its finding.^{Note 22}

Most of the case law recognizes that merely hearing oral testimony firsthand does not normally give the RPD a meaningful advantage.^{Note 23} However, there are two cases that take a different approach. For example, the Court in Sarker found the RAD erred by not giving any deference to the RPD’s positive credibility findings where the RAD made a “wholesale review and reversal” of those findings.^{Note 24} The Court relies on the Supreme Court of Canada’s decision in Singh^{Note 25} to find, “at least as a starting point, that tribunals such as the RPD have a meaningful advantage over the RAD in making credibility findings based on oral testimony.”^{Note 26} In Koleshayi, the Court also found the RPD had an advantage in hearing oral testimony and as such the RAD should have shown more deference to the RPD’s credibility finding.^{Note 27} Neither Sarker or Koleshayi cite Rozas Del Solar nor do they identify information which the RPD had access to and was missing from the record before the RAD.

2.2.1. What is the level of deference?

There is no judicially defined level of deference for the RAD to use once it concludes the RPD had a meaningful advantage.^{Note 28}

Since the Rozas Del Solar decision, there are not many instances of the RAD giving the RPD deference. As a result, the Court has not had many recent opportunities to describe what it means for the RAD to give deference or how the RAD should defer to a particular finding.

It is widely accepted though that when giving deference to an RPD finding:

• The RAD is not to duplicate judicial review;^{Note 29}
• Neither the standard of “reasonableness” nor “RAD reasonableness” is the standard to be used;^{Note 30}
• The RAD must still do its own analysis of the record;^{Note 31}
• Deference never equates to blind endorsement.^{Note 32}

When the RAD decides to give deference, the RAD must give sufficient reasons and explain why the RPD had a meaningful advantage and how the RAD is deferring to the RPD’s findings.^{Note 33}

In some situations, the RAD may have to explain in its reasons why the RPD did not have a meaningful advantage. This may be the case when there are arguments in favour of giving deference. Another example might be where the RAD does a wholesale reversal of the RPD’s positive credibility determination.^{Note 34}

In sum, if the record fully discloses the information on which the RPD based its findings, then most of the jurisprudence recognizes that no deference is owed. If the record does not fully disclose the information on which the RPD based its findings, then the RAD may defer to the RPD’s findings because the RAD finds the RPD had a meaningful advantage.

2.3. Judicial review of the Refugee Appeal Division's choice of standard of review

On judicial review, the Federal Court will use a reasonableness standard to review the RAD’s choice and application of its standard of review.^{Note 35}

A RAD decision may be found to be unreasonable when the RAD inappropriately defers to the RPD’s findings and fails to make its own conclusions about the correctness of the RPD’s findings.^{Note 36}

2.4. The Refugee Appeal Division's own analysis / independent assessment

As previously discussed,^{Note 37} the Federal Court of Appeal in Huruglica, laid down principles relating to the RAD’s duty to perform its own analysis of the evidence in the record.^{Note 38} No matter which standard of review is applied to individual findings, the RAD has a duty to perform its own analysis of the evidence in the record, in determining whether the RPD erred.^{Note 39} This is an independent assessment.

In Hundal, the Federal Court set out the components of an independent assessment. The Court stated, “the RAD has an obligation to conduct its own analysis of the refugee claim before it, while focusing on errors identified by the appellant … and in so doing, the RAD must reach its own conclusions supported by its own internally coherent and rational justification.”^{Note 40} As part of its independent assessment the RAD is required to consider the errors alleged by an appellant. There is no requirement to go beyond the grounds of appeal and consider other potential errors.^{Note 41} However, as part of its independent assessment, the RAD must perform an individualized analysis of an appellant’s risk of harm.^{Note 42}

The RAD record will normally be based on the record that was before the RPD, but there may be other pieces of evidence before it which were not before the RPD, and which will need to be considered as part of its independent assessment. For example:

• Where the RAD admits evidence submitted by the person who is the subject of the appeal (person),^{Note 43} evidence submitted on appeal by the Minister,^{Note 44} or in reply to the Minister’s evidence;^{Note 45}
• Where there is evidence that the RPD refused to accept that is submitted to the RAD;^{Note 46}
• Where the RAD has oral testimony arising from situations where it uses its discretion to hold an oral hearing pursuant to subsection 110(6) of the IRPA;^{Note 47}
• Where there is an updated IRB National Documentation Package relating to country condition evidence that was not before the RPD.^{Note 48}

2.4.1 What are Indicators of an Independent Assessment?

The Court has found the following elements and points indicative of and central to an independent assessment:

• The RAD did not “rubber stamp” the RPD findings;^{Note 49}
• The RAD engaged in a consideration of the evidence;^{Note 50}
• The RAD’s analysis showed it was alive to the reasoning of the RPD, but that it was also conducting its own analysis of the evidence;^{Note 51}
• Where the RAD agreed with the RPD it stated why, and where it came to a different conclusion it explained how;^{Note 52}
• The RAD listened to the recording;^{Note 53}
• The RAD engaged with the arguments;^{Note 54}
• The RAD identified significant contradictions and implausibilities in the appellant’s testimony;^{Note 55}
• The RAD found the RPD erred in one or more of its findings;^{Note 56}
• The RAD analyzed the evidence, drew its own conclusions, and stated whether it agreed with the RPD;^{Note 57}
• The RAD meaningfully grappled with the issues by independently reviewing the evidence, and explicitly stating its own findings by more than simply commenting as to whether the RPD erred in assessing the evidence;^{Note 58}
• The RAD must assess the RPD’s key determinative findings and explicitly come to its own conclusions.^{Note 59}

Furthermore, the Court has identified indicators that reflect a lack of an independent assessment by the RAD. These include:

• The RAD did not refer to listening to the audiotape despite the RPD’s credibility findings;^{Note 60}
• The RAD merely concurred with the RPD’s findings and its independent analysis on an issue of subjective fear consisted of responding to arguments on the jurisprudence;^{Note 61}
• The RAD did not demonstrate that it engaged with the evidence on key aspects of the case.^{Note 62}
• It is not enough for the RAD to limit its analysis to comments as to whether the RPD committed errors in its assessment of the evidence. The RAD must go on to explicitly state its own findings;^{Note 63}
• The RAD cannot disagree with a person’s submissions without saying why; also, the RAD cannot simply disagree with a person’s submissions without going on to state that it agrees with the RPD’s specific findings on the evidence;^{Note 64}

2.4.2. Can the Refugee Appeal Division adopt the Refugee Protection Division's findings as part of its own analysis?

In conducting an independent assessment on appeal, the RAD may choose to agree or adopt RPD findings. The caselaw makes clear that it is acceptable for the RAD to adopt RPD findings provided the RAD makes clear in its reasons that it reviewed all the evidence in the record and performed an independent assessment.^{Note 65}

If the RAD adopts RPD findings without showing its independent assessment, the Court could conclude the RAD did not understand its role.^{Note 66} That said, the fact that the RAD used the same legal analysis as the RPD does not mean it did not conduct its own independent assessment.^{Note 67}

2.4.3. What is the Refugee Appeal Division to do with uncontested Refugee Protection Division findings and errors not raised on appeal?

On appeal, the appellant bears the onus of establishing the grounds of appeal. It is then the RAD’s role to complete its own independent assessment of the appeal and the correctness of the RPD decision. However, if some of the RPD findings are uncontested on appeal, the question arises of what to do with the uncontested RPD findings.

In Dhillon, the Court held that “the onus is on a refugee claimant to prove his or her claim and to establish that the RPD erred in a way that justifies the intervention of the RAD. It is not the RAD’s function to supplement the weaknesses of an appeal before it, or, for that matter, of the refugee protection claim presented in the first place. It is also not its role to come up with new ideas that might assist appellants in succeeding with their appeal and, ultimately, their refugee claim.”^{Note 68}

As a result, the RAD is not to be faulted for not considering issues and arguments that were not made to it.^{Note 69} Additionally, it is not the RAD’s responsibility to identify or provide reasons for unchallenged findings.^{Note 70}

Furthermore, the Federal Court has held that the RAD is not required to go beyond the appellant’s grounds of appeal and consider other potential errors.^{Note 71}

Thus, while the Court generally will not fault the RAD for not addressing issues not raised on appeal before it, as the RAD need not make the case for an appellant, there is still an expectation that the RAD perform its own analysis of the entire record, to determine the correctness of the RPD’s findings on determinative issues.^{Note 72}

The RAD should not presume that unchallenged RPD credibility findings are true. In Derxhia,^{Note 73} the Federal Court held that while it is true that the RAD may owe deference to the RPD on credibility issues, the Federal Court of Appeal made clear in Huruglica that the RAD must assess whether the RPD truly benefitted from an advantageous position in making these credibility determinations. As well, subsection 111(2)(a) of the IRPA requires that the RAD assess whether the RPD was “wrong in law, in fact or in mixed fact and law.” As such, if the RAD were to presume that unchallenged credibility findings are true, this would interfere with this statutory obligation.

Generally, the Court will not review the RAD on uncontested errors. However, the RAD may be held accountable for errors that emerge perceptibly from the evidence.^{Note 74}