Last updated on December 26th, 2018
Section 110(4) of the Immigration and Refugee Protection Act (the “IRPA“) provides that at the Refugee Appeal Division (the “RAD“) a person may only present evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have expected in the circumstances to have presented, at the time of the rejection.
Specifically, it states:
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.
(5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.
(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.
2001, c. 27, s. 110; 2010, c. 8, s. 13; 2012, c. 17, ss. 36, 84.
There have been several certified questions on the interpretation of IRPA s. 110(4). They are:
Question: What standard of review should be applied by the Federal Court when reviewing the RAD’s interpretation of subsection 110(4) of the IRPA?
Federal Court: The RAD’s interpretation of IRPA s. 110(4) is as a question of law that is not of general importance to the legal system as a whole and is not outside the expertise of the RAD. As such, it is to be reviewed on the reasonableness standard.
Federal Court of Appeal:
Question: In considering the role of a Pre-Removal Risk Assessment (“PRRA“) officer and that of the RAD of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)?
Explanatory Note: Under the Raza test, the factors that are to be considered in a PRAA as to whether new evidence should be admitted are:
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.
Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered.
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.
Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered.
Express statutory conditions:
a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered.
b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).
Federal Court: No. The Raza test is unreasonably strict and is not appropriate given the quasi-judicial function of the RAD. The main issue to be decided is simply whether the evidence “was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.”
Federal Court of Appeal: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing.
Deri v. Canada (Citizenship and Immigration), 2015 FC 1042
Question: Does the admission of new evidence under s 110(4) of IRPA involve the exercise of discretion by the RAD? If so, does this discretion permit the RAD to admit evidence which does not meet the test under s 110(4) and does its admission engage a consideration of Charter values?
Federal Court: No.
Federal Court of Appeal: Case Did Not Make it