RAD clearly reviewed the decision of the RPD on the standard of reasonableness and that most of the judges of this Court have held that to be an incorrect basis on which to conduct an appeal of an RPD decision
The Applicants submit that this error alone is sufficient to allow the application and send the Applicants’ appeal back to the RPD.he Respondent submits that even if the RAD had applied the standard of review set out in decisions, the result would have been the same and accordingly, the Court ought not send the matter back
Counsel for the Applicants proposed three questions for certification: 1. Within the Refugee Appeal Division [RAD]’s statutory framework where the appeal proceeds on the basis of the Refugee Protection Division [RPD] record of the proceedings, what is the level of deference, if any, owed by the RAD to the RPD’s findings of fact or mixed fact and law? Page: 4 2. What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division? 3. Does the duty of fairness require the Immigration and Refugee Board to supply an appellant to the Refugee Appeal Division a transcript of the hearing at the Refugee Protection Division where the appellant raises an issue which can be determined only on the basis of what was said at the hearing?
THIS COURT’S JUDGMENT is that this application is allowed, the decision of the RAD is quashed and the appeal is remitted back to be determined by a differently constituted panel, and the following question is certified: What is the scope of the Refugee Appeal Division’s review when
considering an appeal of a decision of the Refugee Protection Division?
Krishnapillai v. Canada (Minister of Citizenship and Immigration) (June 24, 2015, Russel W. Zinn J., Federal Court)