Citizenship and Immigration Committee on Dec. 12th, 2006

[John Frecker]

Yes. The Federal Court would have the expertise in law, I agree with you, but the difference between the Federal Court jurisdiction and the RAD jurisdiction is that the Federal Court jurisdiction can only review and quash an erroneous decision or uphold a correct decision. The RAD can actually enter the correct decision. The Federal Court can't enter the correct decision because that's not part of its jurisdiction.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

It can't enter the correct decision--that's the only distinction--but in fact they can refer the matter back for a rehearing to the IRB, as can the RAD. Those are the same.

[John Frecker]

The whole purpose of the RAD is to eliminate in as many cases as possible the need to refer the cases back and to get to the decision.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

They're looking solely on the basis of the record. They're not looking at new evidence. They're not looking at new submissions; they're just looking at the record.

[John Frecker]

The record and submissions, and submissions that would identify errors in the record.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Submissions that identify errors in record are also submissions that can be made in court.

[John Frecker]

Absolutely, the processes are very, very similar. I agree with you.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

So we have two processes, and if you were to receive a negative decision, you obviously take it to the next level to have yet another review on the same basis.

[John Frecker]

Yes, but as I said to you before, if the RAD is doing its job properly and the members are people who are genuinely expert in the subject area, one can reasonably anticipate that the Federal Court will grant considerable deference and will not grant leave in as many cases. Therefore, the delay that takes place at the Federal Court drops out of the system.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Let me ask you this question. The Federal Court Act says that the court can deal with an appeal on the basis that the initial tribunal “acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction”. Does RAD have a similar provision?

[John Frecker]

The RAD's jurisdiction.... The RAD, because it's an appeal authority, would be able to reverse on error if there were outrageous errors—factual errors, misinterpretation of the country conditions, and things like that.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

If there are factual errors and misinterpretation of fact, the Federal Court can also overturn the decision on that basis.

[John Frecker]

It can overturn it and send it back for re-hearing, but the RAD, because it has the subject matter expertise, can actually enter the right decision.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Let me bring you back to my first question. Does RAD have a specific provision that would allow the appeal to be overturned because the initial body acted without jurisdiction, beyond its jurisdiction, or refused to exercise its jurisdiction, based on administrative law?

[John Frecker]

As far as I know it would have that jurisdiction as well, yes. I'd have to read the actual provision in the act to be sure, but I think the intention at the time was that it would have the jurisdiction that is currently exercised by the Federal Court.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

My question is not what the intention was, but whether there is a specific section in the RAD that allows for this.

[John Frecker]

Bear with me a second.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

It's section 111, perhaps, or 110.

[John Frecker]

Just quickly looking at this—and again, it's been quite a while since I've been steeped in this area—

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

The answer is no, it doesn't.

[John Frecker]

There's no definition. So it would have the same jurisdiction as the protection division would have in dealing with the case, but it would be dealing with the case on the record rather than on new evidence.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

And the second point is that the Federal Court Act says in its grounds of appeal that where the initial tribunal “failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe....”

There is not a similar provision in the RAD provisions. Would you agree with me?

[John Frecker]

I'd have to concede, because I haven't read through the whole act—

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Well, not the whole act; it's section 110—

[John Frecker]

No, but there's nothing to that effect in section 110.