My clients are often under the impression that any decision of a tribunal, whether it is the Immigration Division, Refugee Board or Immigration Appeal Division can be automatically appealed, if the case is lost in the first instance.
Courts and tribunals are slightly different in their operation and adjudication. Courts enforce laws that the legislature passes. They interpret and apply the laws Parliament and the legislature passed when it comes to solving a problem between the state and citizens (criminal court) or a dispute between citizens (civil court). Tribunals are bodies created by government to address a narrow issue, a particular area of citizens’ activity.
Since tribunals are narrowed to decide specific activities, they are given power to be less formal in their approach to disputes than courts. Tribunals therefore are not bound by strict law of evidence. For example, a tribunal judge (it’s called an adjudicator) may accept into evidence a witness’s testimony when the witness talks about their knowledge that was obtained from somebody else. In courts this is not permitted. Somebody’s written letter to the tribunal, without their presence and oral testimony, can also be accepted into evidence. In refugee tribunal it is very common to put lots of weight on a person’s observations of events without that person producing any documents confirming his story. It happens because refugees flee their persecutors in a hurry and are not able to gather documentary evidence.
Tribunals are given power to decide and their decisions cannot simply be overturned by courts. Courts recognize specialized knowledge of the decision makers in any particular tribunal and therefore are reluctant to interfere. Tribunals are flexible, relatively cheap and accessible by the general public. Yet, sometimes, if the rule of law is not followed, tribunals make mistakes and render unfair decisions. However, judges in courts don’t intervene easily because they believe in specialized expertise of tribunals. If, for example, a refugee claimant presented ten pieces of documentary evidence and the adjudicator at an Immigration and Refugee Protection Board (the immigration tribunal), when rendering a negative decision, mentions only eight of the documents for analysis and ignored two, the judge in the court on the appeal will not set aside the decision just for that reason. The tribunal adjudicator would be believed regarding their judgement because it could have concluded on totality of the evidential material and also oral testimony. The judge in court will only intervene if the tribunal’s administration of justice is not in conformity to the fundamental elements of law, or the procedural fairness in holding a hearing was gravely violated.
As Justice Iacobucci put it:
Central to Justice Dickson’s revision was an understanding of the role of expertise in the modern administrative state, because it was an appreciation of specialized expertise that allowed Justice Dickson to acknowledge that judges were not always in the best position to interpret the law.