Section 171 — RAD — special procedures
Text of provision
In the case of a proceeding of the Refugee Appeal Division,
(a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal;
(a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions;
(a.2) the Division is not bound by any legal or technical rules of evidence;
(a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances;
(a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal;
(a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal;
(b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and
(c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court.
Plain English
Section 171 provides that the RAD generally proceeds on the basis of the record from the RPD hearing. The RAD may hold hearings in limited circumstances but typically conducts paper reviews. It may only consider evidence that was not available at the time of the RPD hearing or that arose after the RPD decision.
The RAD applies the correctness standard to questions of law and the reasonableness standard to questions of fact and mixed fact and law — though the Supreme Court has provided guidance on when correctness applies to issues of central importance to the legal system.
Practical effect
The restrictive approach to new evidence at the RAD means that the RPD record must be developed carefully — issues not raised and evidence not filed at the RPD level will generally not be considered on appeal. The RAD's powers include substituting its own decision for that of the RPD, remitting the claim to the RPD for re-determination, or confirming the RPD decision. Where the RAD dismisses an appeal, the rejected claimant must seek leave for judicial review at the Federal Court.