Section 110(4) of the Immigration and Refugee Protection Act (“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 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: I have previously discussed the Raza test in more detail on this blog here, and the question that the Federal Court is asking is whether the same test for the admission of new evidence in a Pre-Removal Risk Assessment applies to the admitting of new evidence to the RAD.
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: