Chapter 7. Remedies

7.1. Finality

In Huruglica, the Federal Court of Appeal held that sections 110 and 111 of the IRPA evidence the legislator’s intent that the RAD bring finality to the refugee claims determination process.^{Note 5} The RAD is to provide a final determination when possible.^{Note 6} This is because the legislator expected to create a more efficient process by having the RAD review the RPD decision and correct its mistakes.^{Note 7} The RAD may send the matter back to the RAD only if it is of the opinion that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD.^{Note 8}

7.2. Paragraphs 111(1) (a) and (b) - Confirming the Refugee Protection Division determination or substituting a new determination

Pursuant to paragraph 111(1)(a) of the IRPA, the RAD can confirm the RPD determination where it concludes that the RPD did not err and, after carrying out its own analysis of the record, the RAD agrees with the RPD’s determination.

Pursuant to paragraph 111(1)(b), the RAD can set aside the RPD determination and substitute its own determination. When substituting its own determination for the RPD determination, the RAD is obligated to conduct a full assessment of the relevant issues concerning the person who is the subject of the appeal (person)’s refugee claim to come to its own conclusion.^{Note 9}

In some cases, there may be a question as to whether the RAD is “confirming” the RPD’s determination under paragraph 111(1)(a) or whether the RAD is “setting aside” the RPD’s determination and “substituting” its own determination under paragraph 111(1)(b).

The answer to this question may depend on what is meant by the “determination of the Refugee Protection Division”. In Alazar, the Federal Court held that the words “the determination” do not refer to any and all findings made by the RPD but, rather, only to the RPD’s finding on the ultimate issue of whether the claimant is a Convention refugee or a person in need of protection. The Court found that this interpretation of “the determination” is consistent with the mandate of the RPD under subsection 107(1) of the IRPA to “determine” whether a claimant is a Convention refugee or a person in need of protection. It is also consistent with the wording of subsection 110(1), which stipulates that an appeal to the RAD is an appeal “against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.”^{Note 10}

7.2.1. Confirming the Refugee Protection Division determination or setting aside the Refugee Protection Division determination and substituting a new determination on the same grounds

There does not appear to be any dispute that the RAD can confirm the RPD determination on the same grounds that were addressed by the RPD in its reasons. Similarly, the RAD can set aside the RPD determination and substitute its own determination after considering the grounds addressed by the RPD.

7.2.2. Confirming the Refugee Protection Division determination or setting aside the Refugee Protection Division determination and substituting a new determination on new grounds

There has been conflicting case law on whether the RAD has the jurisdiction to confirm the determination of the RPD or substitute a different determination on grounds that were not addressed by the RPD in its reasons. However, the bulk of the caselaw confirms that the RAD has such jurisdiction. Significantly, in Huruglica,^{Note 11} the Federal Court of Appeal noted that “[if] there is an error, the RAD can still confirm the decision of the RPD on another basis.” See section 3.2 of Chapter 3: New Issues for a further discussion of the case law on this matter.

7.3. Paragraph 111(1)(c) - Referring a matter back to the Refugee Protection Division

The final type of decision that the RAD is authorized to make is to refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.^{Note 12}

The RAD may refer the matter back to the RPD only if the criteria set out in paragraphs 111(2)(a) and (b) of the IRPA have been met. In other words, the RAD must be of the opinion that the decision of the RPD is wrong in law, in fact or in mixed law and fact and that it cannot make a decision to confirm the RPD determination or substitute its own determination for that of the RPD without hearing evidence that was presented to the RPD.^{Note 13}

When the RAD refers the matter back to the RPD for re-determination, it finds that the appellant has met the burden of showing that the RPD erred in its decision. In other words, the appeal is allowed. However, the facts surrounding the case are such that the RAD cannot make a decision confirming the decision of the RPD or substituting its own decision without hearing what was presented to the RPD. Instead, the RAD is of the view that the case should be sent back to the RPD for a new decision.

One of the purposes of the RAD is to bring finality to proceedings.^{Note 14} Therefore, if the RAD is able to render a final decision based on the evidence before it in a fair manner, then it should not be referring the matter back to the RPD.

In cases where the RAD is allowing an appeal, the reasons must explain how the RPD erred and why the error necessitates that the RPD’s determination be set aside. The reasons should also explicitly explain why the RAD is finding that the requirements of subsection 111(2) have been met—that is, why the RAD can neither confirm the determination of the RPD nor substitute the determination that, in its opinion, should have been made—and why the RAD is exercising its discretion to send the matter back to the RPD. The Federal Court has found that the RAD does not have jurisdiction to refer a matter to the RPD if it does not explain how the requirements of subsection 111(2) are met.^{Note 15​}

In Denis, the RPD rejected a claim on the basis that the claimants had not established their Nigerian identity.^{Note 16} Before the RAD, the appellants admitted they were not citizens of Nigeria but put forward new evidence which established their Spanish citizenship and alleged a claim against Spain. The RAD admitted the new evidence and referred the matter back to the RPD to assess their claims against Spain. The Court held that the RAD did not have jurisdiction to refer the matter back to the RPD because the RAD essentially agreed with the RPD that they failed to establish their identities as citizens of Nigeria.^{Note 17} The Court held that, without having identified an error on the issue on appeal, the RAD was not permitted to refer the matter back.^{Note 18​}

7.3.1. ​Interpretation of the phrase “without hearing evidence that was presented to the Refugee Protection Division”

In Saghiri, the Court found that paragraph​ 111(2)(b) is “awkwardly written” but that the RAD does have the ability to refer matters to the RPD where insufficient evidence was presented to the RPD on an issue which must be decided, and therefore the RAD has insufficient evidence on the issue upon which to render a final determination.^{Note 19​}

However, in a number of decisions, the Federal Court has questioned the ability of the RAD to refer a matter back to the RPD where the evidence the RAD would have needed to hear was not previously presented to the RPD^{Note 20​} or where the RPD did not have a meaningful advantage in assessing the evidence before it.^{Note 21​} While these decisions have generally commented on the RAD's referral power in reasons upholding the RAD for a decision not to refer the matter in question to the RPD, one decision has reversed the RAD for, among other things, referring in the absence of a meaningful advantage.^{Note 22​​}

7.3.2. Examples of referrals to the Refugee Protection Division

The RAD may only refer the matter back to the RPD where the requirements of subsection 111(2) of the IRPA are met. It is not possible to catalogue all the types of cases where the requirements of subsection 111(2) are met. However, referrals back to the RPD are commonly made in the following types of cases:

• There is an insufficient evidentiary basis in the appeal record, in the documentary evidence submitted to the RAD or within the RAD’s specialized knowledge to determine the appeal.^{Note 23}
• There was a breach of natural justice during the RPD proceedings that denied the claimant a fair hearing (for example, reasonable apprehension of bias, denial of the right to counsel, failure to designate a representative when the claimant is a minor or is unable to appreciate the nature of the proceedings, flawed or non existent interpretation, exclusion of relevant documents, or exclusion or limitation of testimony from witnesses or the claimant on material issues).^{Note 24}
• The RAD disagrees with the RPD’s assessment of credibility but the RAD is not in a position to make its own credibility determination.^{Note 25}

7.3.2.1. There is an insufficient evidentiary basis to determine the appeal

A refugee claimant has the burden to establish that they meet the elements of sections 96 or 97 of the IRPA. If they fail to establish any of the elements, their claim must fail. Therefore, the RPD may conduct a hearing focused on one element that they believe the claimant has not established and render a decision which only addresses that element.

If the RAD finds that the RPD erred in their analysis of that element, then the RAD may be left with an inadequate evidentiary record for other issues. By way of example, the RPD may have questioned the claimant only on their identity, but not about credibility issues relating to their forward-looking risk in their home country. By way of further example, the RPD may not have raised the issue of an internal flight alternative with the claimant, and so there may be no internal flight alternative for the RAD to consider.

In some circumstances, the RAD will be able to supplement the evidentiary record by giving notice to the appellant that it wishes to consider a new issue not addressed by the RPD and asking the appellant for submissions or evidence on this point.^{Note 26} In such circumstances, the RAD may be able to render a final decision. However, there will be other circumstances where the RAD is of the opinion that a fair decision cannot be reached without an oral hearing, but that they are without jurisdiction to hold an oral hearing themselves because the requirements of subsection 110(6) of the IRPA are not satisfied. In such circumstances, the RAD may determine that its only remedy is to refer the matter back to the RPD.

7.3.2.2. Breach of natural justice

Natural justice errors entail distinct considerations. Depending on the type of breach of natural justice, its impact on the fairness of the RPD’s decision may differ. Some breaches of natural justice will leave the RAD with no choice but to refer the matter back to the RPD, while others will be of such limited scope that they do not justify setting aside the RPD decision and substituting a new determination or referring the matter back to the RPD.

For example, depending upon the circumstances, improper interpretation throughout the RPD hearing or the failure to designate a representative for a person who does not understand the nature of the proceedings may only be remedied by a new hearing at the RPD. In these cases, a new hearing may be required so that the evidence and testimony can be properly presented to a panel and a decision made on the claim.^{Note 27}

If the error of natural justice was a limited one, it may not be necessary for the RAD to refer the case back. This may be because the outcome of the RPD decision was legally inevitable or because the RAD can correct the error and render a final decision.^{Note 28} As an example of the latter, the RPD’s failure to consider a document submitted after the hearing could be remedied by the RAD’s consideration of this evidence.

7.3.2.3. Appeals based on credibility

There are a number of situations in which the RAD may find it cannot come to a final determination where credibility is in issue. Typically, this involves circumstances where the RAD would be required to make credibility findings on areas where the RPD did not raise inconsistencies or omissions with the claimant.

For example, the RPD’s main credibility finding may be refuted by new evidence, but the RAD may see other possible credibility problems which were not explored at the RPD. In such circumstances, it may be a breach of procedural fairness to decide the claim based on other, unrelated credibility issues if the appellant has not had an opportunity to respond to these concerns.

In some circumstances, the RAD may be able to address these issues by holding an oral hearing if the statutory requirements of subsection 110(6) are established. In these cases, the RAD can use the oral hearing and render a final decision to bring finality to the matter. Alternatively, the RAD may be able to address these issues by giving notice of a new issue and allowing the parties an opportunity to respond by written submissions.^{Note 29} Finally, in situations where the appellant’s credibility is already an issue on appeal and the RAD finds an additional basis to question their credibility using the evidentiary record before the RPD, notice to the appellant and an opportunity to respond may not be required.^{Note 30}

7.4. Directions

The IRPA provides that the RAD may refer a matter back to the RPD for re-determination if the RAD is of the opinion that the RPD erred and that it cannot confirm the RPD’s determination or substitute its own determination without hearing evidence that was presented to the RPD. The IRPA also provides that if the RAD refers a matter to the RPD for re-determination, it may give “directions to the [RPD] that the [RAD] considers appropriate”:

111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:

1. confirm the determination of the Refugee Protection Division;
2. set aside the determination and substitute a determination that, in its opinion, should have been made; or
3. refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.

Referrals

(2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that

1. the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and
2. it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division.^{Note 31}

The IRPA does not provide a lot of guidance on the possible nature or extent of the directions that can be given by the RAD. Other than providing that the directions should be given to the RPD, paragraph 111(1)(c) states simply that the RAD can give the directions that “it considers appropriate”.

The case law with respect to the Federal Court’s power to issue directions on an application for judicial review may be of some relevance. However, caution is warranted in directly applying this case law to the RAD, which is an administrative tribunal with remedial powers that differ from those of the Federal Court.

Paragraph 18.1(3)(b) of the Federal Courts Act empowers the Federal Court to issue directions on an application for judicial review.^{Note 32} Similar to the wording in paragraph 111(1)(c) of the IRPA, paragraph 18.1(3)(b) of the Federal Courts Act provides that, on a judicial review application, the Court may refer a matter back for redetermination “in accordance with such directions as it considers to be appropriate”:

18.1 (3) On an application for judicial review, the Federal Court may

1. ​order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
2. declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.^{Note 33}

In Yansane, the Federal Court of Appeal held that the nature of the directions that the Federal Court may give will depend on the circumstances. The Court of Appeal referred to several illustrations in the case law of such directions, including imposing a time limit for the reconsideration of a file, limiting the reconsideration to a specific issue and requiring the decision-maker to consider certain documents, excluding evidence, or prohibiting a certain outcome.^{Note 34}

7.4.1. Impact of Refugee Appeal Division directions on the Refugee Protection Division

The IRB’s Policy on Redeterminations Ordered by the Refugee Appeal Division provides that the RPD will comply with the RAD’s directions regarding the composition of the redetermination panel and the contents of the redetermination file:

5. Policy Statement

[…]

The RPD will comply with any directions of the RAD regarding the composition of the redetermination panel. In those instances where the RAD does not provide directions regarding the composition of the redetermination panel, whenever practicable, the case will be reheard by a decision-maker(s) other than the one (those) who made the original decision.

The RPD will also comply with any specific directions of the RAD regarding the contents of the redetermination case file. Where the RAD gives no such directions, the content of the redetermination case file will be determined according to whether or not the RAD has found a denial of natural justice.

In those instances where the RAD does not provide directions, the appropriate ADC or CM will decide who the decision-maker(s) will be as well as the contents of the redetermination case file.^{Note 35}

In RAD decision X (Re),^{Note 36​} the RAD examined the impact of RAD directions on the RPD. In this case, the RAD had referred the matter back to the RPD for redetermination, with the following directions:

The differently constituted RPD panel must re-determine that matter and that re-determination should be restricted solely to the following issues, namely, whether the claimants had an IFA and/or state protection.

However, the RPD panel hearing the redetermination failed to follow the RAD directions and conducted a credibility assessment.

On appeal of the second RPD decision, the person argued that the RPD breached natural justice as it did not follow the RAD directions. The RAD panel hearing the appeal of the second RPD decision concluded that the RPD erred by breaching the first RAD panel’s directions. RAD decisions by single member panels should be considered persuasive by the RPD, and binding to the specific case that was the subject of the RAD appeal. The RPD has an obligation to follow the directions of the RAD or to provide a satisfactory explanation for why it could not do so.