On June 22, 2016, the Chairperson of the Immigration and Refugee Board of Canada ordered that the appeal in decision No. TB6-03419/20/21/22 be conducted before a panel of three members of the Refugee Appeal Division (RAD). This was the first appeal to be decided by a three-member panel, with all previous appeals being reviewed by a single member.
Specifically, a three-member panel was ordered for this appeal so that the RAD could determine its role in an appeal where the Refugee Protection Division’s (RPD) findings of fact (or of mixed fact and law) involve an issue of credibility, including determining what level of deference, if any, is owed to the credibility findings made by the RPD.
The three-member panel in decision No. TB6-03419/20/21/22 determined that the RAD normally applies a standard of correctness to all findings of the RPD; however, where the RPD has an advantage in making a particular finding, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context.
The decision further defines the role of the RAD in an appeal. It provides guidance to RAD members as to when the RPD is in a better position to make findings with respect to the credibility of oral testimony.
For example, the RPD may be in a better position to assess inconsistencies in oral testimony given that it benefits from seeing and hearing the witness as well as deciding on which questions to ask.
As set out in the Designation of Three-Member Panels - Refugee Appeal Division, a decision of a three-member panel is binding on the RPD and on a single-member panel of the RAD.