Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division

IRPA Sections 110-111: Appeal to Refugee Appeal Division

Sections 110 and 111 of the Immigration and Refugee Protection Act read:

Appeal to Refugee Appeal Division

Appeal
110 (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.

The jurisdiction of the RAD is to hear appeals on a question or law, of fact, or of mixed law and fact against a decision of the RPD

As per s. 110(1) of the IRPA, the jurisdiction of the RAD is to hear appeals on a question or law, of fact, or of mixed law and fact against a decision of the RPD. The RAD is to proceed on the basis of the record of the proceedings of the RPD, unless the provisions below for allowing new evidence are engaged. This has implications for the jurisdiction of the RAD to hear and consider new issues. Where a claim could have been raised before the RPD, but was not, the evidence supporting it may not be presented at the RAD unless it complies with the new evidence provisions. As such, in Vasli v. Canada, the court concluded that the RAD reasonably found that a claim based upon wearing the hijab could have been raised before the RPD and that statements in support of it were not admissible before the RAD. See also: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA 111(1)(c) and 111(2): the Refugee Appeal Division may refer the matter to the Refugee Protection Division for re-determination in specified circumstances.

Notice of appeal
110(1.1) The Minister may satisfy any requirement respecting the manner in which an appeal is filed and perfected by submitting a notice of appeal and any supporting documents.

Restriction on appeals
(2) No appeal may be made in respect of any of the following:
(a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national;
(b) a determination that a refugee protection claim has been withdrawn or abandoned;
(c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded;
(d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if
(i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and
(ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division;
(d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1);
(e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased;
(f) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection.

Making of appeal
(2.1) The appeal must be filed and perfected within the time limits set out in the regulations.

IRPA Section 110(3): Procedure

Procedure
(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board.

In the case of a matter that is conducted before a panel of three members, the RAD may accept documentary evidence and written submissions from UNHCR

IRPA section 110(3) provides that in the case of a matter that is conducted before a panel of three members, the Refugee Appeal Division may accept documentary evidence from a representative or agent of the United Nations High Commissioner for Refugees. But see RAD Rule 45, which provides that the UNHCR's written submissions must not raise new issues: Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals#RAD Rule 45: UNHCR providing written submissions in an appeal conducted by a three-member panel.

The RAD must proceed without a hearing on the basis of the record of the proceedings of the RPD, subject to listed exceptions, but this provision does not restrict the RAD from introducing new evidence

The Refuge Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, though, subject to subsections (3.1), (4) and (6), the RAD may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal, and, in the case of a matter that is conducted before a panel of three members, written submissions from the UNHCR and any other person specified in the rules of the Board. What is omitted from this rule is any mention of the power of the RAD itself to introduce new evidence. Nor is the RAD's ability to act suo moto considered in subsections (3.1) [time limit for making a decision], (4) [evidence that may be presented by the person who is the subject of the appeal], or (6) [when the RAD may hold a hearing]. This is because the the RAD's ability to put new evidence on the record, e.g. disclose an updated National Documentation Package to the parties, is governed by other provisions of the Act, especially s. 165 IRPA [Powers of a commissioner]: Canadian Refugee Procedure/Powers of a Member#Section 165 of the IRPA. There is no question that the RAD has such a power to introduce new evidence, indeed, the courts have stated that the RAD has an obligation to do so in some cases, e.g. in Zhang v. Canada, the court held that the RAD should consider the most recent information, given that it is assessing risk on a forward looking basis, including an updated National Documentation Package released by the Board subsequent to a appeal being perfected.

IRPA Section 110(3.1): Time limit for making a decision

Time limits
(3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations.

IRPA Section 110(4)-(5): Evidence that may be presented

Evidence that may be presented
(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.

Exception
(5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.

What is "evidence" and how is evidence distinct from other types of documents such as legal authorities?

On appeal, the person who is the subject of the appeal may present only evidence that meets the criteria stipulated above. This invites the question "what is 'evidence' and how is evidence distinct from other types of documents such as legal authorities?". For an exploration of this question, see: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#Rules 3(3)(e) and 3(3)(f): Legal authorities may be distinguished from evidence that an appellant wants to rely on.

Section 110(4) applies to presenting additional evidence, not to whether evidence excluded by the RPD should in fact be included

Section 110(4) of the Act applies to the evidence that the person who is the subject of the appeal may present to the RAD. It does not concern evidence that was presented to the RPD but not accepted. Such evidence is distinct and covered by RAD Rule 3(3)(c) which concerns any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#RAD Rule 3: Perfecting Appeal.

Criteria for presenting new evidence

110(4) criteria

Subsection 110(4) of the Immigration and Refugee Protection Act limits the admission of new evidence on appeal to the following three circumstances: i) where the evidence arose after the rejection of the claim; ii) where the evidence was not reasonably available at the time of the rejection of the claim; or iii) where the evidence could not have reasonably been expected to be presented at the time of the rejection of the claim. The Federal Court of Appeal has held that these statutory conditions “leave no room for discretion on the part of the RAD” and must “be narrowly interpreted”. This is so as “the role of the RAD is not to provide an opportunity to complete a deficient record submitted before the RPD”. The onus is on the applicants to convince the RAD that their new evidence is admissible. According to Rule 3(3)(g)(iii) of the RAD Rules, appellants must submit a memorandum that includes full and detailed submissions regarding how any documentary evidence they wish to rely on meets the requirements set out in subsection 110(4) of the Act. A consideration of each of these grounds for admitting new evidence follows:

• Did the evidence arise after the rejection of the claim? The newness of a piece of evidence cannot be tested solely by the date on which the document was created. What is important is the date of the event or circumstance sought to be proved by the documentary evidence. In Amin v. Canada the Federal Court upheld a RAD decision which concluded that donation receipts post-dating the RPD decision were inadmissible and that it was reasonably open to the RAD to reject them per s. 110(4) of the Act on the basis that the Applicants were improperly attempting to correct a deficient record given that (a) the RPD expressly rejected the Applicants’ claim due to a lack of sufficient evidence, such as evidence of donations or communications related to religious activity or membership; and (b) the donation receipt was dated only days after the RPD’s rejection of their claim. That said, the more common approach is to assess this type of consideration under the credibility criterion in Singh v. Canada discussed below, not as part of the s. 110(4) criteria.
• Was the evidence not reasonably available at the time of the rejection of the claim? Applicants bear the burden of putting their best foot forward and they may not submit new evidence whenever they are surprised by an outcome. Factors to consider include:
  • Did the Appellant request leave to provide post-hearing submissions to the RPD? The courts have noted that nothing prevents a party from requesting an opportunity to provide post-hearing submissions, and where they did not do so at the RPD, this is relevant to this new evidence admissibility analysis.
  • Did the Appellant indicate to the RPD that the document existed? In Nsofor v. Canada the RAD found that a document did not meet the s. 110(4) criteria as it concluded that the Appellant could reasonably have been expected in the circumstances to have indicated to the RPD prior to the rejection that such evidence existed.
  • Did the RPD reserve its decision, and if so how much time passed prior to it being rendered? When looking at the amount of time that elapsed between an RPD hearing and a panel of the RPD rendering a decision, to assess whether that duration was quick and meant that an applicant could not have reasonably submitted documents during that time period, the court in Aregbesola v. Canada noted that a 34-day timespan could not be considered "quick" in that case where country condition documents from the internet were at issue.
  • Did the Appellant provide an explanation about how they were eventually able to obtain the documents? In a case where evidence pre-dated the RPD's decision, but the Appellants maintain that they could not have reasonably presented the evidence sooner because of an inability to obtain help in securing the documents, the court held that "it was reasonable for the RAD to expect some explanation about how the Applicants were eventually able to obtain the documents." Absent a proper explanation, the court held in Ali v. Canada that it was reasonable to conclude that the documents could have been obtained and provided to the RPD sooner. In Fardusi v. Canada, the court held that the fact that the information in question was in the hands of the agent of persecution (until being subsequently served on the Appellant during a legal proceeding) was relevant to whether it was reasonably available to her. Similarly, in Samaraweera v. Canada, the court held that it was necessary to consider the submission that the applicant’s family had deliberately concealed from the applicant the ongoing harassment and efforts to search for the applicant until after the RPD decision.
  • Was the Appellant's counsel negligent in not providing the document? In Singh v. Canada, the court considered it relevant that the failure to produce the document was the fault of the claimant's lawyer.
  • Is the document a news story published just prior to the RPD decision? In Ogundipe v Canada, the Court concluded that the RAD should have accepted as new evidence an article that was published two days before the RPD decision and related to an event that occurred the day before the publication. In contrast, in Collahua v. Canada, the Court found Ogundipe v Canada distinguishable because that case concerned articles dated six weeks before the RPD’s decision; the court accept that their refusal was reasonable.
• Was the evidence that which the person could not reasonably have been expected in the circumstances to have presented at the time of the rejection? An Appellant cannot offer new evidence “every time he or she is surprised by the RPD’s decision.” It is where the evidence could not have reasonably been expected to be presented (or, according to the French version, “normally have been expected”) at the time of the rejection of the claim that it may be admitted on appeal. Factors to consider include:
  • Did the issue arise at the hearing or only in the RPD's reasons? If the issue arose at the hearing, then the issue will generally be one of whether the evidence was not reasonably available at the time of the rejection of the claim (above), including whether the appellant could have requested an adjournment, informed the RPD that they were trying to obtain additional information, and requested leave to provide post-hearing submissions under the RPD rules.
  • Should the appellant have anticipated that the issue in question would have arisen? Even if the issue only arose in the decision, the RAD must consider whether the appellant should reasonably have anticipated that the issue would have come up. In some cases, the answer will point to concluding that the person could not reasonably in the circumstances have been expected to have provided the evidence. For example, in Ismailov v. Canada the court concluded that it was unreasonable for the RAD to conclude that the Applicant should have reasonably been expected to submit articles to the RPD about the ability to leave Uzbekistan when one is being investigated by the prosecutor's office, as the Applicant could not have anticipated that the RPD would be suspicious about this fact (the documents established that it was common that such persons could leave the country). In other circumstances, the answer will point to concluding that the person could reasonably in the circumstances have been expected to have provided the evidence. For example, in Hassan v. Canada, Mr. Hassan argued that he had not anticipated the RPD would reject an initial letter from a Canadian Somali association that he provided to support his claim and that as a result he should be allowed to submit new letters from Canadian Somali associations affirming his identity as a Somali at the RAD. The court upheld the RAD's determination that, notwithstanding the fact that identity was at the centre of the RAD decision (the claim was rejected on that basis), the affidavits that Mr. Hassan submitted to the RAD did not contain any information that arose after the RPD’s decision and so it was reasonable for the RAD to conclude that he had not provided a sufficient explanation for why the evidence could not have been presented before the RPD rendered its decision.

Personal factors, gender, trauma, language, and self-represented status

According to the IRB Gender Guidelines, the assessment of whether new evidence meets the admissibility test under subsection 110(4) of the IRPA and RAD Rule 29(4) should be undertaken using a trauma-informed approach that considers the difficulties faced by persons who have experienced gender-based violence. The fact that an applicant was self-represented and did not speak the language of the proceedings (English or French) does not itself establish that they could not reasonably in the circumstances have been expected to have presented the documents.

Additional Raza/Singh factors

In addition to the express statutory requirements in the statutory provision above, the RAD must ensure that the implied conditions of admissibility laid out by the Federal Court of Appeal are fulfilled, specifically credibility, relevance, and newness. Some Federal Court decisions add the requirement that the evidence be "material" to the decision to this list, but the better view is that the Federal Court of Appeal held that materiality should not be a requirement for admitting evidence at the RAD because materiality is dealt with under the new hearing provisions in the Act, not at the evidence admissibility stage. More information:

• Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. Documents that essentially repeat the same information that was before the RPD will fail this newness criterion. In contrast, evidence that refers to an old risk should not be rejected as “not new” where it speaks to the development of the risk and is materially different evidence of that old risk.
• Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. That said, the credibility analysis at this stage is not limited to specific grounds such as the “source” or the “circumstances in which [the evidence] came into existence.” Factors that have been looked at in such analyses include:
  • Is there reasonably expected corroborating evidence? In Nsofor v. Canada, the Appellant indicated that he tried to obtain a document earlier, but was unable to do so because the police station had burned down. The RAD rejected the document on the basis that, among other things, there was no corroborating evidence regarding the alleged fire.
  • Is there a sufficient explanation of the circumstances in which the document was obtained? In Nsofor v. Canada, the the RAD rejected a document as not sufficiently credible given that there was no explanation given as to how and why the handwritten paper document was saved from an alleged police station fire.
  • Has the original document been provided or only a copy thereof? In Nsofor v. Canada, the court upheld a RAD determination that the fact that all that was provided was a WhatsApp screen shot of the document – not the document itself – properly detracted from the document's credibility in the circumstances.
  • Is the timing by which the document allegedly arose exceedingly fortuitous? The RAD can regard the timing of evidence as dubious or convenient in a way which undermines its credibility. Past RAD panels have concluded that the production of alleged police and court documents which notably escalate efforts to find the appellant, days after the rejection of his claim, is suspicious. For example, in Yusuf v. Canada, the court held that the RAD reasonably found an affidavit was too fortuitous to be credible because it was extremely unlikely that the affiant, who was meant to be the applicant’s reception upon arrival in Canada but did not appear at the airport and never communicated with the applicant in the subsequent three years, ran into the applicant by chance within weeks of the negative RPD decision. Such concerns about documents being obtained in implausible circumstances can serve to rebut the presumption of authenticity of foreign documents.
  • Is the document consistent with other evidence on file? In Tuncdemir v. Canada, the court held that the RAD reasonably came to the conclusion that an affidavit lacked credibility in light of the fact that the affidavit contradicted certain parts of the Applicant’s BoC narrative.
  • Has the appellant submitted other fraudulent documents? When considering the source of the evidence, the tribunal is entitled to consider that the RAD has upheld other serious credibility concerns that involve the applicant’s submission of fraudulent documents. However, the RAD must guard against engaging in circular reasoning by refusing to admit evidence because the content of the new evidence is not credible based on the RPD’s findings. A general finding that a refugee claimant lacks credibility does not impugn all evidence that might corroborate his story.
  • For further context, see also: Canadian Refugee Procedure/IRPA Section 170 - Proceedings#IRPA Section 170(h) - May receive and base a decision on evidence considered credible or trustworthy.

• Relevance: In determining the relevance of the new evidence, the RAD is required to determine whether the evidence was “capable of proving or disproving a fact that is relevant to the claim for protection”. The RAD is required to assess relevance in the context of the applicants’ submissions and how the items are being relied upon relative to the determinative issues that are outstanding for the claim. For example, in Asim v. Canada the court upheld a RAD decision which had rejected a doctor’s letter as not relevant because the letter did not provide any specific information on how the applicant’s condition could have affected his testimony. In that case, the determinative issue was the claimant's credibility and the RAD properly rejected the letter as not relevant because it prove or disprove the credibility findings of the RPD. Similarly, in Kakar v. Canada the court upheld the RAD's refusal to admit new evidence on the basis that "if the Mafia is not targeting Mr. Kakar, evidence concerning the situation of persons sought by the Mafia is simply irrelevant."

The additional requirements from Canada v. Singh do not need to be weighed against the statutory ones; if the new evidence does not meet the statutory requirements for admission in s. 110(4), there is no need to consider the further constraints at common law. Conservely, the RAD is under no obligation to analyze the explicit criteria of subsection 110(4) of the IRPA before analyzing these implied conditions of Raza and Singh. Furthermore, evidence must meet all of the above criteria; for example, if evidence is not credible, relevance and newness are irrelevant and the RAD can reasonably focus its analysis on the issue of credibility if it is determinative.

The RAD may exclude evidence but then provide an alternative analysis of how the evidence would affect the decision if it had been admitted

It is open to a panel of the RAD to determine that evidence does not meet the criteria to be admitted, but to state that in the event that it has erred in concluding that the documents should not be admitted into evidence, it will, in the alternative, consider them.

The RAD may decline to consider whether or not new evidence is admissible if the new evidence would not change the outcome of the appeal

It is not necessary for a panel of the RAD to make a determination about whether new evidence is admissible or not if admitting it would not change the outcome of the appeal.

The RAD may reject evidence, accept evidence, or accept evidence only in part

RAD member R. Seyan provides an example of how the tribunal may accept evidence in part in this 2020 decision. Inadmissible evidence does not become admissible simply because it is commingled with, or bootstrapped onto, a document which is admissible. As such, for example, where an affidavit includes both admissible and inadmissible paragraphs a panel may admit some and reject others.

The RAD may conclude that new evidence meets the threshold for admissibility, even if it is ultimately held to lack reliability and credibility

In Ariyibi v. Canada, the court upheld a RAD decision which the RAD found that the new evidence met the threshold for admissibility, but assigned it little weight on the basis that the letters lacked reliability and credibility.

IRPA Section 110(6): Hearings

Hearing
(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;
(b) that is central to the decision with respect to the refugee protection claim; and
(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.

The RAD must exercise its discretion about whether to hold a hearing where the criteria in s. 110(6) are met, regardless of whether a party has requested a hearing

The RAD Rules put the onus on applicants to inform the RAD why they are requesting an oral hearing and to provide “full and detailed submissions” supporting this request. That said, while the RAD rules allow an appellant to request a hearing, IRPA does not actually impose a burden either to request, or to satisfy the RAD that the circumstances merit, an oral hearing. The onus rests with the RAD to consider and apply the statutory criteria reasonably. The RAD's reasons should show how it conducted a meaningful analysis of the criteria in subsection 110(6) and determined whether or not to hold an oral hearing.

While this is a discretionary provision, and oral hearings at the RAD are relatively unusual, a hearing must generally be held where these statutory requirements are met. While the RAD retains discretion to (not) hold a hearing under subsection 110(6), it will need to exercise that discretion reasonably in the circumstances. The Federal Could has concluded that “an oral hearing [will] generally be required where the statutory criteria have been satisfied” (Zhuo v Canada). Not exercising that discretion to hold an oral hearing simply because neither party requested a hearing does not meet the threshold of reasonableness. In Waldman's words, "although the language in both the RAD and PRRA context is permissive rather than imperative, the jurisprudence in the PRRA context would appear to indicate that hearings may be a mandatory component of procedural fairness in cases where credibility is central to the decision. This principle was first established by the Supreme Court in Singh and has been integrated into the jurisprudence on the PRRA regime."

Interpretation of the section 110(6) criteria

Section 110(6) of the IRPA provides that the Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) that meets the following three-part conjunctive test. The presumption, according to this statutory provision, is that there will be no oral hearing unless all three criteria under the tripartite test in subsection 110(6) are met as well as the conditions under subsection 110(4). The following subsection 110(6) criteria are said to be "associated with the existence of new documentary evidence":

• (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal. When approaching this question, a panel can consider whether the new evidence will alter credibility findings or “justify a reassessment of the overall credibility of the applicant”? Furthermore, the documentary evidence must raise a serious issue with the respect to the credibility of the person who is the subject of the appeal; a hearing should not be held merely to assess the credibility of the evidence itself if that evidence does not raise a serious issue with respect to the person's credibility. Similarly, a credibility finding against a third party (for example, the applicant's mother) does not trigger the right to an oral hearing as this does not go directly to the applicant’s credibility. In the words of A.B. v. Canada, the RAD is not required to hold an oral hearing to assess the credibility of new evidence—it is when otherwise credible and admitted evidence raises a serious issue with respect to the general credibility of the applicant that the determination of an oral hearing becomes relevant. In approaching this question, a panel can consider the following questions:
  • Do credibility questions emerge from the evidence, or only questions regarding the weight and/or sufficiency of the evidence? Section 110(6) requires that, before a hearing can be held, new documentary evidence must raise a serious issue with respect to the credibility of the person who is the subject of the appeal. Where the RAD does not have credibility concerns as a result of the evidence, but rather concerns about the evidence's weight, the criteria of s. 110(6) will not met. Similarly, where the RAD does not raise any "new" serious issues with respect to the credibility of the applicant, but instead bases its decision on a lack of sufficient evidence to prove the applicant's claim (e.g. the applicant's identity), then a hearing is not available.
  • Is there already similar evidence in the record? Panels have generally considered whether there was already similar evidence in the record. If so, then the new, additional, evidence will generally not raise a serious issue with respect to credibility.
  • Is the new evidence clearly credible or not credible? The RAD should not convene an oral hearing when the evidence does not raise a serious issue with respect to credibility. If, considering the evidence, the claim is clearly credible or not credible, then a hearing need not be convened. For example, if the RAD has an analytical foundation for disbelieving the new evidence, then it need not be accepted as per the Singh v. Canada criteria, and as a result, a hearing need not be held. As the court held in Ajaguna v. Canada, the RAD is not required to accept every story that a third party may be prepared to submit, however fanciful it may be. Conversely, if the new evidence does not raise a serious issue with respect to the credibility of the person because the evidence and claim are clearly credible, the evidence need not be further tested, and the claim can consequently be accepted forthwith, then convening a hearing will not be necessary.
• (b) that is central to the decision with respect to the refugee protection claim. When considering this branch of the test, panels have considered the following questions:
  • Is the evidence central to the RPD's decision, or an aspect thereof? The court notes that this criterion requires not that the new evidence be "central to the claim" but instead "central to the decision". As such, evidence which is central to the claim but on a point that was not at issue in the decision or reasons, would not be "central to the decision".
  • Is the evidence central with respect to one of the elements that has or needs to be proven to receive refugee protection? This can be considered a materiality requirement; evidence is material if it could reasonably be expected to have affected the result of the RPD’s decision. An example of a situation that would meet this criterion, but not the next, is where a claim was rejected on the basis of identity and IFA. New evidence related to identity would be central to the decision with respect to the refugee protection claim, even if, if accepted, it would not, in itself, justify allowing or rejecting the refugee protection claim.
• (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. When considering this branch of the test, panels have considered the following questions:
  • Does the evidence relate to a determinative issue? In assessing this criterion, the RAD should look at the determinative issue(s) and whether the findings would be affected by the new evidence. See, for example, Idugboe v. Canada: "The evidence that was rejected on credibility grounds spoke to new instances of threats and attacks, none of which would have affected the determinative IFA issue. While the evidence arguably speaks to the motivation of Mr. Idugboe’s family to find the Idugboes on their return, the IFA determination was based on a variety of factors, including their means and ability to locate the Idugboes in Port Harcourt, none of which was affected by this newly tendered evidence."
  • Do the documents raise a new issue that could justify granting protection? Where the new evidence that has been tendered raises a new issue that could justify granting protection, for example a sur place claim, then this will indicate that this criterion is met.
  • Should the evidence be accorded sufficient weight such that it could justify allowing or rejecting the claim? When making this determination, it is proper to consider the weight of the evidence that has been tendered; where new evidence has been admitted, but has been assigned very little weight such that it is insufficient to overcome previous negative credibility findings, then this may properly indicate that the new evidence which was accepted could not justify allowing the claim and the conditions in this subsection are thereby not met.

Applicability of PRRA jurisprudence

The factors listed in section 167 of the Immigration and Refugee Protection Regulations which govern when a Pre-Removal Risk Assessment (PRRA) officer will hold a hearing are nearly identical to those listed in subsection 110(6) of the Act. The Federal Court held in Shen v. Canada that the nearly identical factors appear to indicate Parliament’s intention that similar analyses should be applied in each case. However, the court went to to comment, "the similarity of the provisions does not automatically lead to the conclusion that the Court’s jurisprudence under each provision is interchangeable".

Ability to conduct a voir dire to determine whether evidence will be admitted

The general practice of the RAD is to hold an oral hearing only after documentary evidence is already accepted as new evidence. An oral hearing in the nature of a voir dire, where a hearing is held in order to determine whether the documentary evidence ought to be admitted into evidence, is not generally held at the RAD. However RAD Member Rita Aggarwala has concluded that one may be.

As stated in Mohamed v. Canada, there is no question that the RAD may only convene an oral hearing where evidence meets the criteria of s. 110(4) of the Act: "subsection 110(6) permits the RAD to hold an oral hearing where, in its opinion, “there is documentary evidence referred to in subsection (3)” that meets the criteria in paragraphs (a), (b), and (c). The subsection thus only applies in circumstances where it determines there is evidence referred to in subsection 110(3). Such documentary evidence may only be filed by the claimant if they establish it meets the requirements of subsection 110(4). In other words, the RAD must determine whether there is evidence that meets the requirements of subsection 110(4) before conducting the subsection 110(6) assessment of whether that evidence (a) raises a serious issue of credibility, (b) is central to the decision on the refugee protection claim, and (c) would justify allowing or rejecting the claim."

A question arises, however, about whether evidence must in every case meet the Canada v. Singh criteria, including being judged to be credible, prior to an oral hearing being held. The better view of this matter is "no". This is so for several reasons, including that the text of s. 110(6)(c) of the IRPA implies that the decision about whether to admit the evidence or not need not be made at the time of the oral hearing, as that criterion is to be evaluated "à supposer qu’ils soient admis", i.e. "supposing they [the new documents] are admitted", employing the subjunctive mood for the verb être, which implies uncertainty and indeterminacy. Furthermore, it could be argued that the "if accepted" wording in this provision applies to the facts contained in the new documents, not to the documents themselves.

But see the following conflicting statements: the Federal Court has stated that the RAD can only hold an oral hearing after it decides to admit new evidence: "the RAD could not have held an oral hearing about whether to admit the new evidence—it had to have admitted the new evidence in order to have the statutory authority to hold an oral hearing." Similarly, in Limones Munoz v. Canada the court commented that "there must be a link between the documentary evidence admitted and the three elements listed in [section 110(6)]", indicating that the documentary evidence must have been admitted in order for a hearing to be convened.

IRPA Section 111: Decision and Referrals

Decision
111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:
(a) confirm the determination of the Refugee Protection Division;
(b) set aside the determination and substitute a determination that, in its opinion, should have been made; or
(c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.
(1.1) [Repealed, 2012, c. 17, s. 37]

Referrals
(2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that
(a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and
(b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division.

IRPA s. 111(1)(b): the Refugee Appeal Division may set aside the determination of the RPD and substitute a determination that, in its opinion, should have been made

The RAD has the power to set aside a determination made by the RPD and substitute its determination that, in its opinion, should have been made. As Waldman observes, this provision allows the RAD to substitute its decision for that of the RPD, even if no new evidence has been submitted and no error has been identified in the RPD decision.

IRPA ss. 111(1)(c) and 111(2): the Refugee Appeal Division may refer the matter to the Refugee Protection Division for re-determination in specified circumstances

When the RAD finds that the RPD erred, as per s. 111 of the Act it must provide a final determination by setting aside the decision and substituting its own determination of the merits of the claim, and “it is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination”.

Thus, per IRPA s. 111(2), the Refugee Appeal Division may refer a matter to the RPD only if it is of the opinion that (a) the RPD decision was incorrect in fact, law or both, and (b) the RAD cannot make its own determination of the issue on appeal without hearing evidence that was presented to the RPD. This is a conjunctive test:

111(2)(a) The RPD decision was incorrect in fact, law or both

Where, for example, the RAD does not articulate why the RPD decision was incorrect in fact, law, or both, but simply notes that new evidence has been adduced on appeal, and that new evidence does not contradict any existing factual findings, then the RAD may not remit the case to the RPD. For example, in Canada v. Hayat, the claimant stated to the RAD that his claim on the basis of sexual orientation at the RPD had been made up, that he was not gay, but that he wanted to present a different basis to claim related to political opinion. The RAD determined that the Appellant should be given the benefit of the doubt and remitted the matter to the RPD for a new hearing. The court held that this had been unreasonable, as the RAD had not identified any error with the RPD's original decision finding that the Appellant's sexual orientation-based claim was not credible. As such, the law did not permit the RAD to remit the matter to the RPD. See also: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#The jurisdiction of the RAD is to hear appeals on a question or law, of fact, or of mixed law and fact against a decision of the RPD.

111(2)(b) The RAD cannot make its own determination of the issue on appeal without hearing evidence that was presented to the RPD

The provision “acknowledges the fact that in some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD”. As stated in Malambu v. Canada, a combined reading of sections 110 and 111 of the IRPA and of Rule 3 of the Rules indicates that where no new evidence is submitted to the RAD, but the RAD is of the opinion that the RPD’s decision is wrong in law or fact or mixed law and fact, and that it can neither confirm nor set aside the decision appealed without itself holding a hearing to re-examine the evidence adduced, it must refer the matter back to the RPD.

A question can arise about whether this provision allows the RAD to refer a matter to the RPD where no evidence was canvassed at the RPD on a particular determinative issue. For example, in Saghiri v. Canada the RPD had not canvassed the issue of 1F(b) exclusion at the hearing, the RAD held that this was in error, no new evidence was submitted on appeal, and the appellant submitted that the RAD could not remit the matter to the RPD for further examination pursuant to this provision the issue was not canvassed during the RPD's oral hearing. The plain text of the statutory provision can be read to call such jurisdiction into question given that it provides that the RAD may only refer a matter back to the RPD where it was not able to make a decision "without hearing evidence that was presented to the Refugee Protection Division [emphasis added]". Similarly, the French-language provision speaks to only being able to refer a matter to the RPD for re-determination if it cannot make a decision without holding a new hearing in order to réexamen (which has been translated as re-examine, reconsider, review, or reappraise) the evidence that was presented to the RPD: "qu’elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés."

The Minister's position is that a purposive interpretation of paragraph 111(2)(b) of IRPA “allows the RAD to remit a refugee claim for further evidence because otherwise restricting the evidence on the RPD’s redetermination would bring about an absurd consequence”, since the RAD can only confirm, substitute or return a decision under section 111(1) of IRPA. If the RAD needs more evidence, but cannot refer a claim to the RPD, then the RAD would be “hamstrung”. The court acknowledges that when looking at its particular wording, paragraph 111(2)(b) is “awkwardly written” in both English and French. Saghiri v. Canada upheld a RAD decision to remit a matter so that the RPD could ask questions on an additional issue as follows: "There was no or insufficient evidence before the RPD on the issue of exclusion which it could have heard that would have allowed it to confirm or substitute its own determination of the issue. Thus the only remedy was to send it back to the RPD for all of the evidence relating to the claim to be heard again in order to make an informed decision on the question of exclusion."

Also of note, in Javed v. Canada, the court stated that in a case where the RAD "concluded that the RPD did not have a meaningful advantage regarding findings of credibility,...it was not open to the RAD by operation of paragraph 111(2)(b), to refer the matter back to the RPD for re‑determination." The converse can also hold: where the RPD did have a meaningful advantage regarding its credibility findings, then, as a general proposition, the RAD may not undertake a "wholesale review and reversal" of the RPD's credibility findings. Furthermore, even where an applicant establishes that the necessary conditions exist, the RAD retains a discretion about whether to refer a matter back to the RPD. It is under no obligation to do so.

Once a matter is remitted, it is to follow the process set out in the IRB Policy on Redeterminations Ordered by the Refugee Appeal Division.

IRPA 111(1)(c): the Refugee Appeal Division may give the directions to the Refugee Protection Division that it considers appropriate when referring a matter for re-determination

Section 111(1)(c) of the IRPA provides that after considering an appeal, the Refugee Appeal Division may refer a matter to the Refugee Protection Division for redetermination, giving the directions to the Refugee Protection Division that it considers appropriate. There are any number of such directions that can be provided, including that:

• The matter is to be heard by the same RPD panel as initially heard the claim, if at all possible.
• In hearing and deciding the claim, the RPD is to consider only specific evidence that relates to the reasons why the matter is being remitted and the panel is to accept the findings of the first RPD panel unless those findings are disturbed by the new evidence.