Canadian Refugee Procedure, 171 - Proceedings

IRPA Section 171

The relevant provision of the Immigration and Refugee Protection Act reads:

Proceedings
171 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.

Section 171 of the IRPA may be contrasted with s. 170, which provides what powers the RPD has

Section 171 sets out powers that the RAD has in a proceeding. Section 170 sets out those powers of the RPD. The two may be contrasted. While section 170 of the IRPA provides that the RPD "may inquire into any matter that it considers relevant to establishing whether a claim is well-founded", the RAD does not have a similar power prescribed by s. 171. For more detail on s. 170, see: Canadian Refugee Procedure/IRPA Section 170 - Proceedings.

IRPA Section 171(a.2)

Proceedings
171 In the case of a proceeding of the Refugee Appeal Division,
(a.2) the Division is not bound by any legal or technical rules of evidence;

See the equivalent provision for the RPD, IRPA s. 170(g)

Canadian Refugee Procedure/IRPA Section 170 - Proceedings#IRPA Section 170(g) - Is not bound by any legal or technical rules of evidence

IRPA Section 171(a.3)

Proceedings
171 In the case of a proceeding of the Refugee Appeal Division, ...
(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;

See the equivalent provision for the RPD, IRPA s. 170(h)

Canadian Refugee Procedure/IRPA Section 170 - Proceedings#IRPA Section 170(h) - May receive and base a decision on evidence considered credible or trustworthy

IRPA Section 171(b)

Proceedings
171 In the case of a proceeding of the Refugee Appeal Division, ...
(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;

See the commentary on the relevant RPD rule

See: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge.

IRPA Section 171(c)

Proceedings
171 In the case of a proceeding of the Refugee Appeal Division, ...
(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.

The Refugee Appeal Division has issued a policy on designation of three-member panels

As per s. 171(c) of the IRPA, a decision of a panel of three members of the RAD has, for the RPD and for a panel of one member of the RAD, the same precedential value as a decision of an appeal court has for a trial court. Under the relevant RAD Policy, a three-member panel may be designated if one or more of the following criteria is met: (i) the appeal raises unusually complex or emerging legal issues; (ii) the appeal raises an issue in an area in which there is significant divergence or inconsistency in decision-making at either the RAD or the RPD; (iii) the appeal raises a serious question of general importance; (iv) the appeal raises an issue that may have a significant impact on practice and procedure at either the RAD or the RPD; or (v) any other relevant circumstances exist that make it appropriate that a three-member panel be designated.[1]

References

• ↑ Immigration and Refugee Board of Canada, Designation of Three-Member Panels - Refugee Appeal Division, April 12, 2013, <https://www.irb-cisr.gc.ca/en/legal-policy/policies/pages/PolRadSar3MemCom.aspx> (Accessed April 28, 2022).

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