Internal Appellate Review: the Role of the New Refugee Appeal Division

I made a presentation last week to the members of the new Refugee Appeal Division and their legal advisers. The RAD hears appeals from the Refugee Protection Division: most of the relevant statutory provisions are contained in Part IV of the Immigration and Refugee Protection Act.

One of the questions the members of the RAD have been asking themselves in their decisions to date is whether they should be deferential to findings made by the RPD. My presentation focused on this. My answer was a heavily qualified yes: the RAD should show some deference to the RPD, but it should not apply rigidly tests developed for review by courts of administrative decisions.

The Federal Court of Appeal on Inadequate Reasons

The Supreme Court of Canada took the (in my view) reasonable step in Newfoundland Nurses, 2011 SCC 62 of separating procedural review for failure to provide reasons from substantive review for reasonableness. One concern that might be voiced in response is that rolling a procedural right to reasons into substantive review may give too much latitude to administrative decision-makers, resulting in opaque decisions which communicate little or nothing to those affected. Viewed in this light, the approach of the Federal Court of Appeal in Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227 is reassuring.