Chapter 2. Refugee Appeal Division's Standard of Review

2.1. The Refugee Appeal Division’s correctness review
2.2. Deference – when the Refugee Protection Division has a meaningful advantage

2.2.1 What is the level of deference?

2.3. Judicial review of the Refugee Appeal Division’s choice of standard of review
2.4 The Refugee Appeal Division’s own analysis / independent assessment

2.4.1. What are Indicators of an independent assessment?
2.4.2. Can the Refugee Appeal Division adopt the Refugee Protection Division's findings as part of its own analysis?
2.4.3. What is the Refugee Appeal Division to do with uncontested Refugee Protection Division findings and errors not raised on appeal?

Notes

2. The Refugee Appeal Division's Standard of Review

This chapter discusses the standard of review the RAD uses when reviewing RPD decisions, and the requirement that the RAD perform its own analysis of the record.

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}
The RAD alluded to but did not engage with the objective evidence or with the applicant's testimony.^{Note 63}
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 64}
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 65}
The RAD merely repeats the statutory language and then states a conclusion^{Note 66}.
The mere fact that the RAD states that it will perform an independent analysis, or otherwise pay lip service to the concept of independent analysis, does not make it so.^{Note 67}

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 68}

If the RAD adopts RPD findings without showing its independent assessment, the Court could conclude the RAD did not understand its role.^{Note 69} 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 70}

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 71}

As a result, the RAD is not to be faulted for not considering issues and arguments that were not made to it,^{Note 72} and in Onukuba, the Court held that the RAD's decision must be assessed based on how the appellant framed their appeal^{Note 73}. Additionally, it is not the RAD’s responsibility to identify or provide reasons for unchallenged findings.^{Note 74}

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 75}

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 76}

The RAD should not presume that unchallenged RPD credibility findings are true. In Derxhia,^{Note 77} 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 78}

Additionally, the Court has ruled that the RAD’s obligation to assess uncontested RPD findings increases with the proximity of those findings to a conclusion on risks that appellants face.^{Note 79} The RAD’s reasons supporting or disagreeing with the RPD’s risk findings must be justified, transparent and intelligible, even if those findings are unchallenged.^{Note 80}

Notes

Note 1

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 78 and 103 (CanLII). At paragraph 106, the Court answers the following reformulated certified question in the negative and dismisses the appeal:

Question: 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?
Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. Appeal dismissed.

Huruglica is recognized as the leading decision on the RAD’s correctness review. Also see, Kreishan v. Canada (Minister of Citizenship and Immigration), 2019 FCA 223, paragraph 44 (CanLII); Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraph 60 (CanLII).

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Note 2

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraph 93 (CanLII).

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Note 3

Refugee Appeal Division Rules, SOR/2012-257, rule 21(3)(e).

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Note 4

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraphs 89–94 and 104—106 (CanLII). Also see, for example, Singh v. Canada (Minister of Citizenship and Immigration), 2021 FC 1464 at paragraphs 11–12 (CanLII); Ahmed v. Canada (Minister of Citizenship and Immigration), 2022 FC 881, paragraph 42 (CanLII).

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Note 5

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraphs 60 and 92—93 (CanLII).

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Note 6

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103 (CanLII). In Singh v. Canada (Minister of Citizenship and Immigration), 2016 FCA 96, paragraph 54 (CanLII), the Court held “[t]he role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.”

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Note 7

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraphs 14–15, 29 and 55 (CanLII). In Gomes v. Canada (Minister of Citizenship and Immigration), 2020 FC 506, paragraph 59 (CanLII), the Court finds that through a correctness lens, the RAD “[…] must put a stake in the ground, and must decide the key and determinative issues by either expressing agreement or disagreement with the impugned findings of the RPD […].” Building on Gomes, the Court stated in Nwankwo v. Canada (Minister of Citizenship and Immigration), 2024 FC 1827, paragraph 58 (CanLII), that the RAD must do more than merely agree with the RPD – having undertaken its own analysis, the RAD must express and explain its findings, even if briefly, so as to demonstrate where it landed on the issues raised in the appeal. However, see Kaur v. Canada (Minister of Citizenship and Immigration), 2024 FC 735, paragraph 20 (CanLII), where the Court has been clear that the RAD is not required to restart the analysis from scratch for an independent review, and the length of the RAD’s decision is not alone indicative of any failure of the RAD.

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Note 8

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraph 55 (CanLII), citing Dunsmuir v. New Brunswick, 2008 SCC 9, paragraph 34 (CanLII).

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Note 9

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 87 and 103 (CanLII); Kreishan v. Canada (Minister of Citizenship and Immigration), 2019 FCA 223, paragraphs 41 and 44 (CanLII); Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraphs 69–73 (CanLII).

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Note 10

Kreishan v. Canada (Minister of Citizenship and Immigration), 2019 FCA 223, paragraph 42 (CanLII).

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Note 11

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 78 (CanLII). Also see, Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 70 (CanLII); Madu v. Canada (Minister of Citizenship and Immigration), 2022 FC 758, paragraphs 12–14 (CanLII); Glover v. Canada (Minister of Citizenship and Immigration), 2022 FC 1713, paragraphs 13–15 (CanLII).

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Note 12

Marinaj v. Canada (Minister of Citizenship and Immigration), 2020 FC 548, paragraph 47 (CanLII).

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Note 13

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 79 and 103 (CanLII). The Court defines a “true de novo proceeding” as one where the second decision maker starts anew and the original decision is ignored in all respects.

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Note 14

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 37–38, 97 and 103 (CanLII). The Court observed that the legislative intention was for the RAD appeal to be done based on the record before the RPD, except in limited cases where new evidence would be admitted and the requirements of subsection 110(6) were fulfilled.

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Note 15

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraph 99 (CanLII), citing Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, 2018 FC 374, paragraph 25 (CanLII).

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Note 16

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 70, 78 and 103 (CanLII).

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Note 17

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 70–74 (CanLII).

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Note 18

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraphs 93–94 and 105 (CanLII). At paragraph 105, the Court finds that “[m]atters simply relating to oral testimony cannot suffice as a reason for deference. Rather, the relevant factors must relate to oral testimony and be incapable of being captured in the record before the RAD. Only then could it be said that the RPD had a meaningful advantage over the RAD.” See, for example, Ahi v. Canada (Minister of Citizenship and Immigration), 2016 FC 1028, paragraph 13 (CanLII). In Ahi, the Court finds the RPD was better positioned to identify if the person was present in a video recording of an event played at the hearing given the person’s presence before the RPD. In Ugbekile v. Canada (Minister of Citizenship and Immigration), 2016 FC 1397, paragraph 21 (CanLII), the RPD did not draw a negative inference based on a momentary pause in the testimony. The Court finds the RPD had an advantage in seeing whether the pause was “caused by a disturbance in the room or some other reason.” There was a breach of procedural fairness though since the RAD did not give the person notice before drawing a negative inference based on the pause.

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Note 19

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraphs 104–106 (CanLII).

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Note 20

See Denis v. Canada (Minister of Citizenship and Immigration), 2018 FC 1182, paragraph 37 (CanLII), citing Jadallah v. Canada (Minister of Citizenship and Immigration), 2016 FC 1240, paragraph 54 (CanLII). The Court in Jadallah finds the RAD reasonably deferred to the RPD’s assessment, where the RPD observed irregularities in an original identity document (including the appearance of inkjet printing, two separate pieces, misaligned features and irregular cuts) and the original was not in the RAD record. InAdebayo v. Canada (Minister of Immigration, Refugees and Citizenship), 2019 FC 330, paragraphs 34–35 (CanLII), despite the RAD identifying the standard as reasonableness, the Court upholds the RAD decision and finds it was entitled to give deference to the RPD’s assessment of a newspaper article. The Court notes that the “the RPD had the benefit of reviewing the quality of the original article, comparing it to other articles in the same newspaper.” In Owolabi v. Canada (Minister of Citizenship and Immigration), 2021 FC 2, paragraphs 46–48 (CanLII), the Court finds the RAD reasonably deferred to the RPD’s finding that original photographs did not show bruises. The Court finds the RPD had a meaningful advantage in having originals to examine and a clearer view of the photographs. The Court rejects the argument that the RAD did not have to give deference since it could have requested a clearer copy of the documents.

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Note 21

Denis v. Canada (Minister of Citizenship and Immigration), 2018 FC 1182, paragraph 37 (CanLII). Also see, for example, Warsame v. Canada (Minister of Citizenship and Immigration), 2019 FC 920, paragraphs 43–44 (CanLII).

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Note 22

For example, in Denis v. Canada (Minister of Citizenship and Immigration), 2018 FC 1182, paragraphs 37–40 (CanLII), the Minister seized the person’s identity documents after the RPD hearing and the RAD did not have access to the original documents. The Court finds the RAD did not owe deference to the RPD’s findings on the documents because the findings were based on information from the National Documentation Package (NDP) included in the RAD record.

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Note 23

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraphs 89–94 and 104–107 (CanLII). Also see, for example, Singh v. Canada (Minister of Citizenship and Immigration), 2021 FC 1464, paragraphs 11–12 (CanLII); Ahmed v. Canada (Minister of Citizenship and Immigration), 2022 FC 881, paragraph 42 (CanLII) and Ma v. Canada (Minister of Citizenship and Immigration), 2018 FC 252, paragraphs 47–49 (CanLII).

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Note 24

Sarker v. Canada (Minister of Citizenship and Immigration), 2022 FC 1367, paragraphs 4, 23 and 38 (CanLII). Compare Sarker with Ma v. Canada (Minister of Citizenship and Immigration), 2018 FC 252, paragraphs 47–49 (CanLII). In Ma, the Court rejects the person’s argument that the RAD should have deferred to the RPD’s positive credibility assessment.

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Note 25

Singh v. Canada (Minister of Employment and Immigration), 1985 CanLII 65 (CanLII).

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Note 26

Sarker v. Canada (Minister of Citizenship and Immigration), 2022 FC 1367, paragraph 38 (CanLII). Note that the Court later distinguished Sarker in Liaquat v. Canada (Minister of Citizenship and Immigration), 2024 FC 1950, paragraph 33 (CanLII). In Liaquat, the applicants argued that the RAD was not permitted to do a complete overhaul and reverse the RPD’s core findings. The Court stated Liaquat was a case where the RAD did not undertake a complete overhaul and reversal of the core findings of the RPD or anything close to that, and instead the RAD reasonably reviewed one subset of credibility findings and then corrected them.

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Note 27

Canada (Minister of Citizenship and Immigration) v. Koleshayi, 2022 FC 1521, paragraph 25 (CanLII).

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Note 28

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 70 and 74 (CanLII); Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraph 132 (CanLII).

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Note 29

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 37 and 47 (CanLII). Also see, Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraphs 130 and 136 (CanLII)

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Note 30

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraphs 135–136 (CanLII) . Note that “RAD reasonableness” was the standard set forth by the RAD three-member panel in X(Re), 2017 CanLII 33034 (RAD) and found on judicial review to be unreasonable, in Rozas Del Solar. The Court has on occasion upheld the RAD post-Rozas Del Solar despite the RAD’s use of the language of reasonableness. See, for example, Adebayo v. Canada (Minister of Immigration, Refugees and Citizenship), 2019 FC 330, paragraph 35 (CanLII).

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Note 31

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraph 125 (CanLII).

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Note 32

Rozas Del Solar v. Canada (Minister of Citizenship and Immigration), 2018 FC 1145, paragraph 125 (CanLII) citing Dunsmuir v. New Brunswick, 2008 SCC 9, paragraph 48 (CanLII).

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Note 33

For example, see Hamid v. Canada (Minister of Citizenship and Immigration), 2018 FC 1246, paragraphs 30–35 (CanLII), Tejuoso v. Canada (Minister of Citizenship and Immigration), 2019 FC 903, paragraph 31 (CanLII), Gomes v. Canada (Minister of Citizenship and Immigration), 2020 FC 506, paragraphs 22 and 42 (CanLII); Mohamed v. Canada (Minister of Citizenship and Immigration), 2020 FC 1145, paragraphs 44–53 (CanLII).

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Note 34

In Sarker v. Canada (Minister of Citizenship and Immigration), 2022 FC 1367 (CanLII), the Court finds the RAD should have explained why the RPD did not have a meaningful advantage in making its positive credibility findings.

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Note 35

Mason v. Canada (Minister of Citizenship and Immigration), 2023 SCC 21, paragraphs 59-63 Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII); Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 30 and 35 (CanLII).

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Note 36

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 104 and 106 (CanLII). Also see, for example, Denis v. Canada (Minister of Citizenship and Immigration), 2018 FC 1182, paragraph 37 (CanLII); Mohamed v. Canada (Minister of Citizenship and Immigration), 2020 FC 1145, paragraphs 44–53 (CanLII); Harerimana v. Canada (Minister of Citizenship and Immigration), 2022 FC 347, paragraph 23 (CanLII), Burugu v. Canada (Minister of Citizenship and Immigration), 2023 FC 609, paragraph 47 (CanLII); Nwankwo v. Canada (Minister of Citizenship and Immigration), 2024 FC 1827, paragraph 69 (CanLII).

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Note 37

See section 2.1. of this Chapter.

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Note 38

Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103 (CanLII): “with respect to findings of fact (and mixed fact and law) …… 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.”

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Note 39

Whether or not the RAD decides to accord deference to RPD findings, the RAD must show it conducted an independent assessment of the evidence. For example, in Tejuoso v. Canada (Minister of Citizenship and Immigration), 2019 FC 903, paragraph 32 (CanLII), the Court observed that where the RAD deferred to the RPD’s findings because the RPD was in a more advantageous position than the RAD, that was not inconsistent with the requirement that the RAD perform an independent assessment. The RAD Member was found to have “conducted a reasoned, independent analysis of the evidence” and “did not show unwarranted deference to the RPD’s conclusions”. In another case, the Court in Warsame v. Canada (Minister of Citizenship and Immigration), 2019 FC 920, paragraph 45 (CanLII) found that the RAD improperly deferred to the RPD’s factual findings without performing an independent assessment of the record. See also Mohamed v. Canada (Minister of Citizenship and Immigration), 2020 FC 1145, paragraph 51 (CanLII), where the Court found the RAD afforded the RPD’s credibility findings too much deference and gave no indication as to why it considered the RPD to have had a meaningful advantage.

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Note 40

Hundal v Canada (Minister of Citizenship and Immigration), 2021 FC 72, paragraph 17 (CanLII).

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Note 41

Kanawati v Canada (Minister of Citizenship and Immigration), 2020 FC 12, paragraph 24 (CanLII). Also see Krasilov v. Canada (Minister of Citizenship and Immigration), 2023 FC 635, paragraph 23 (CanLII). In the case of Onukuba v. Canada (Minister of Citizenship and Immigration), 2023 FC 877, paragraph 21 (CanLII), the Court held that the RAD’s decision must be assessed based on how the person framed their appeal.

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Note 42

In Canada (Minister of Citizenship and Immigration) v. Algazal, 2020 FC 336, paragraphs 28–30 (CanLII), the RAD set aside the RPD’s exclusion finding and substituted a positive decision on the basis that his claim was like those of his family members whose claims had been accepted. The Court found the RAD erred by not conducting an independent assessment of the relevant issues relating to the person’s claim. See also, Canada (Minister of Citizenship and Immigration) v. Kaler, 2019 FC 883, paragraphs 16 and 18 (CanLII).

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Note 43

Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 110(4). This provision is more fully discussed in Chapter 4: Admissibility of Evidence.

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Note 44

Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 110(3). This provision is more fully discussed with respect to the Minister’s evidence in Chapter 4: Admissibility of Evidence.

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Note 45

Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 110(5). This provision is more fully discussed in Chapter 4: Admissibility of Evidence.

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Note 46

Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(c).

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Note 47

Immigration and Refugee Protection Act, SC 2001, chapter 27, subsection 110(6). This provision is more fully discussed in Chapter 6: Oral Hearings.

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Note 48

Zhang v. Canada (Minister of Citizenship and Immigration), 2015 FC 1031, paragraph 54 (CanLII); Lamsal v. Canada (Minister of Citizenship and Immigration), 2023 FC 807, paragraphs 51—54 (CanLII); Singh v. Canada (Minister of Citizenship and Immigration), 2023 FC 1623, paragraphs 37—40 (CanLII); Guzman v. Canada (Minister of Citizenship and Immigration), 2024 FC 433, paragraph 25 (CanLII).

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Note 49

Nikkhoo v. Canada (Minister of Citizenship and Immigration), 2017 FC 1138, paragraph 8 (CanLII).

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Note 50

Nikkhoo v. Canada (Minister of Citizenship and Immigration), 2017 FC 1138, paragraph 8 (CanLII).

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Note 51

Nikkhoo v. Canada (Minister of Citizenship and Immigration), 2017 FC 1138, paragraph 10 (CanLII).

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Note 52

Nikkhoo v. Canada (Minister of Citizenship and Immigration), 2017 FC 1138, paragraph 10 (CanLII). In upholding the RAD’s decision here, the Court held that the RAD accurately defined its role, carried out its appeal function and arrived at its conclusions regarding credibility, genuine belief and sur place after doing an independent assessment of the evidence.

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Note 53

Singh v. Canada (Minister of Citizenship and Immigration), 2021 FC 612, paragraph 32 (CanLII) and Mavangou v. Canada (Minister of Citizenship and Immigration), 2019 FC 177, paragraph 36 (CanLII).

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Note 54

Mavangou v. Canada (Minister of Citizenship and Immigration), 2019 FC 177, paragraphs 36 and 38 (CanLII).

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Note 55

Singh v. Canada (Minister of Citizenship and Immigration), 2021 FC 612, paragraph 32 (CanLII).

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Note 56

Fermin Mora v. Canada (Minister of Citizenship and Immigration), 2018 FC 521, paragraphs 35–36 (CanLII).

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Note 57

Muliisa v. Canada (Minister of Citizenship and Immigration), 2019 FC 1490, paragraph 24 (CanLII).

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Note 58

Gomes v. Canada (Minister of Citizenship and Immigration), 2020 FC 506, paragraph 48 (CanLII).

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Note 59

Gomes v. Canada (Minister of Citizenship and Immigration), 2020 FC 506, paragraph 60 (CanLII).

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Note 60

Agh v. Canada (Minister of Citizenship and Immigration), 2019 FC 1086, paragraph 36 (CanLII).

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Note 61

Jeyaseelan v. Canada (Minister of Citizenship and Immigration), 2017 FC 278, paragraph 15 (CanLII).

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Note 62

Nur v. Canada (Minister of Immigration, Refugees and Citizenship), 2019 FC 1444, paragraph 42 (CanLII).

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Note 63

Nwanko v. Canada (Minister of Citizenship and Immigration), 2024 FC 1827, paragraph 69 (CanLII).

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Note 64

Gomes v. Canada (Minister of Citizenship and Immigration), 2020 FC 506, paragraphs 49 and 52 (CanLII).

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Note 65

Gomes v. Canada (Minister of Citizenship and Immigration), 2020 FC 506, paragraphs 49–51 (CanLII).

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Note 66

Gnanasekaran v. Canada (Minster of Citizenship and Immigration), 2023 FC 79, paragraph 10 (CanLII).

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Note 67

Aliasgari v. Canada (Minister of Citizenship and Immigration), 2024 FC 1338, paragraph 11 (CanLII).

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Note 68

In Haseeb v. Canada (Minister of Citizenship and Immigration), 2017 FC 711, paragraph 8 (CanLII), the Court concluded that “[t]he mere fact that the RAD came to the same conclusion as the RPD does not mean that the RAD did not carry out its own independent analysis of the record or that the Decision was unreasonable.” The Court’s conclusion was based on its own review of the RAD’s assessment which demonstrated (including by making numerous references to the record and audio recording throughout its reasons) that the member independently reviewed the evidence before the RPD in determining whether that decision was correct. See also Budai v. Canada (Minister of Citizenship and Immigration), 2021 FC 313, paragraphs 12–18 (CanLII), where the Court noted that the RAD’s reasons showed that it considered the person’s arguments and made its own findings on the alleged errors and evidence, and it did not simply adopt the RPD’s findings. Similarly, in Canada (Minister of Citizenship and Immigration) v. Mvundura, 2021 FC 369, paragraphs 28–35 (CanLII), the Court determined that the RAD’s decision correcting a flawed credibility determination showed why and how it arrived at that decision, which was that the RPD had ignored evidence. The RAD’s reasons mentioned specific pieces of evidence which included the US asylum claim narrative, medical evidence, affidavits, testimony from the RPD and photographic evidence, and the RAD also stated that it agreed with the arguments. The RAD’s reasons here were also found to be adequate as they allowed the Court to understand how the RAD came to its decision.

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Note 69

Jeyaseelan v. Canada (Minister of Citizenship and Immigration), 2017 FC 278, paragraph 19 (CanLII). See also Sun v. Canada (Minister of Citizenship and Immigration), 2019 FC 856 (CanLII) and Farah v. Canada (Minister of Citizenship and Immigration), 2019 FC 27 (CanLII). In Hendricks v. Canada (Minister of Citizenship and Immigration), 2017 FC 741, paragraph 9 (CanLII), the “RAD simply agreed with the RPD rather than review [sic] the balance of the [person’s] issues on appeal. Essentially, the RAD adopted the RPD reasons as its own.” See also, Denis v. Canada (Minister of Citizenship and Immigration), 2018 FC 1182, paragraph 39 (CanLII) and Wembolua v. Canada (Minister of Citizenship and Immigration), 2021 FC 1420, paragraph 18 (CanLII). Note the case of Aliasgari v. Canada (Minister of Citizenship and Immigration), 2024 FC 1338, paragraph 11 (CanLII), where the Court stated that “[t]o simply adopt all of the RPD’s reasons risks falling into the deferential standard of review that was found to be inappropriate for the RAD, save for instances of specific, meaningful advantage that the RPD had in making its credibility findings…”.

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Note 70

Onwuamaizu v. Canada (Minister of Citizenship and Immigration), 2021 FC 1481, paragraph 24 (CanLII). See also Kaur v. Canada (Minister of Citizenship and Immigration), 2024 FC 735, paragraph 20 (CanLII), where the Court stated that the RAD is not required to restart the analysis from scratch for an independent review.

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Note 71

Dhillon v. Canada (Minister of Citizenship and Immigration), 2015 FC 321, paragraph 20 (CanLII); Nzouankeu v. Canada (Minister of Citizenship and Immigration), 2023 FC 440, paragraph 22 (CanLII); Ma v. Canada (Minister of Citizenship and Immigration), 2024 FC 471, paragraph 15 (CanLII). See also Ghauri v. Canada (Minister of Citizenship and Immigration), 2016 FC 548, paragraphs 33–34 (CanLII) and Murugesu v. Canada (Minister of Citizenship and Immigration), 2016 FC 819 (CanLII).

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Note 72

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Note 73

Onukuba v. Canada (Minister of Citizenship and Immigration), 2023 FC 877, paragraph 21 (CanLII).

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Note 74

Malik Yamah v. Canada (Minister of Citizenship and Immigration), 2021 FC 406, paragraph 20 (CanLII), Akintola v. Canada (Minister of Citizenship and Immigration), 2020 FC 971, paragraph 21 (CanLII), and Amadi v. Canada (Minister of Citizenship and Immigration), 2019 FC 1166 (CanLII).

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Note 75

In Kanawati v. Canada (Minister of Citizenship and Immigration), 2020 FC 12, paragraphs 23–24 (CanLII) the person had not raised any alleged error in the RPD’s assessment of the police or medical reports. In Adams v. Canada (Minister of Citizenship and Immigration), 2021 FC 1128, paragraphs 21, 23 and 25 (CanLII) the Court found that the person’s submissions to the RAD did not explicitly raise the issue of the person’s perceived sexuality, and that the person should have made those submissions to the RAD with clarity if he wanted to rely on them. See also, Essel v. Canada (Minister of Citizenship and Immigration), 2020 FC 1025, paragraph 14 (CanLII).

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Note 76

In Milfort-Laguere v. Canada (Minister of Citizenship and Immigration), 2019 FC 1361, paragraphs 26–27 (CanLII), the person argued that the RAD erred by quashing a part of the RPD decision which was not part of the grounds for appeal. The Court held that the RAD was not limited to considering only the grounds of appeal but needed to do an assessment of the entire RPD record.

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Note 77

Derxhia v. Canada (Minister of Citizenship and Immigration), 2018 FC 140, paragraph 28 (CanLII).

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Note 78

Dhillon v. Canada (Minister of Citizenship and Immigration), 2015 FC 321, paragraphs 23–24 (CanLII); Singh v. Canada (Minister of Citizenship and Immigration), 2023 FC 1715, paragraph 45 (CanLII).

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Note 79

Al Lamy v. Canada (Minister of Citizenship and Immigration), 2024 FC 1621, paragraph 18 (CanLII). In this case, the Court differentiated between an unchallenged minor evidentiary RPD finding which may not require a RAD re-assessment, and an unchallenged RPD analysis of documentary evidence establishing the presence or absence of risk under sections 96 or 97 of IRPA which require a RAD re-assessment even if unchallenged.

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Note 80

Al Lamy v. Canada (Minister of Citizenship and Immigration), 2024 FC 1621, paragraph 29 (CanLII).

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