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.

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.

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 apply the correctness standard of review to determine whether the RPD erred. The RAD may then set aside the determination of the RPD and substitute the determination that, in its opinion, should have been made: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division.

The RAD is obliged to conduct an independent review of the case, focusing on the errors identified by the appellant. However, decision-makers are not required to refer to every piece of evidence or address every argument: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

The RAD is to proceed on the basis of the record of the proceedings of the RPD, unless admissible new evidence is accepted onto the record. This has implications for the jurisdiction of the RAD to hear and consider new issues. Where a claim could have been presented to the RPD, but was not, and statements in support of that aspect of the claim are not admissible on appeal as new evidence, then the RAD need not assess that aspect of the appellant's allegations. For example, in Vasli v. Canada, the RAD found that a claim based upon wearing the hijab could have been raised before the RPD and so it could not be raised for the first time at the RAD. This is so because, while “the RAD must conduct its own assessment of the evidence, absent new evidence on an issue, it cannot consider a new argument, developed for the ﬁrst time on appeal.” See also: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division.

The appellant's record must contain a memorandum with submissions regarding the errors that are the grounds of the appeal: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal. A corollary of the obligation to identify such errors is that, subject to some exceptions discussed at the link above, an applicant cannot reasonably fault the RAD for not going beyond the grounds of appeal or for not providing extensive reasons regarding matters that the applicant did not challenge. See also: Canadian Refugee Procedure/The Board's inquisitorial mandate.

The RAD may raise new issues that are not raised in the appeal submissions
The RAD is obliged to conduct an independent review of the case, focusing on the errors identified by the appellant. As part of this, the RAD must conduct its own assessment of the evidence de novo. The RAD is not bound by the findings of the RPD on appeal, and it remains open to the RAD to render new or different substantive findings. See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

Inherent in this jurisdiction is the power to raise new issues. At the common law, appellate courts ordinarily have a limited discretion to raise new issues. As the Supreme Court of Canada recognized in R. v. Mian, while appellate courts have the discretion to raise new issues, this power should be used sparingly and “only in rare circumstances”. It further explained that a new issue should only be raised “when failing to do so would risk an injustice”, “whether there is a sufficient record on which to raise the issue”, and where it would not result in “procedural prejudice to any party”. These criteria arguably need not constrain the RAD, a specialized tribunal distinct from a court. The Federal Court notes that the strict application of the concepts from R. v. Mian to the RPD/RAD context is not binding. It may be argued that section 111 of the IRPA signals that the standard from R. v. Mian is not the one that should apply to the RAD and that the RAD has broad discretion to bring finality to a claim consistent with its obligation to proceed quickly and informally: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA Section 111: Decision and Referrals and Canadian Refugee Procedure/162 - Board Jurisdiction and Procedure. The court holds that "upon a plain reading of the legislation", the RAD is clothed with the jurisdiction to raise and decide an issue such as the availability of an Internal Flight Alternative, even if neither party has raised it, provided that it notifies the parties and gives them an opportunity to present submissions on the new issue. However, the Federal Court has at times had recourse to the criteria from R. v. Mian when interpreting the RAD's jurisdiction, for example with Justice Kane of the Federal Court finding that the RAD may only raise a new issue "if failing to raise the new issue would risk injustice". For a discussion of what constitutes a new issue, see: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal.

Some earlier Federal Court caselaw held that the RAD lacked jurisdiction to independently decide issues that had not been decided by the RPD, for example a sur place claim. That caselaw held that if the RAD felt that such an issue ought to have been decided, the RAD should refer that part of the claim back to the RPD for a decision. However, this decision has been distinguished on the basis that it has been supplanted by the subsequent Federal Court of Appeal case Huruglica v Canada and the cases have been read as standing for the proposition that "the RAD may not raise a new issue not determined by the RPD without providing further notice to the appellant," not as a wholesale want of RAD jurisdiction requiring a remittal to the RPD. See further: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division and also Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal.

IRPA Section 110(2): Restrictions on appeals
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.

No appeal may be made to the RAD in respect of any of the listed circumstances
This provision is entitled "restriction on appeals" and provides that no appeal may be made to the RAD in respect of any of the listed circumstances.

110(2)(d): No appeal may be made by claimants who are allowed to make a refugee claim pursuant to an exception to the Safe Third Country Agreement
Subject to the regulations, no appeal may be made the RAD of a decision of the Refugee Protection Division in respect of a claim for refugee protection if the conditions in s. 110(2)(d) are met. In effect, this bars access to an appeal before the RAD for claimants who are allowed to make a refugee claim pursuant to an exception to the Safe Third Country Agreement. The court observes that "the language of paragraph 110(2)(d) of the IRPA is crystal clear and leaves little room for interpretation". The court has upheld the constitutionality of this provision. In Dor v. Canada, it determined that paragraph 110(2)(d) does not have a “disproportionate” impact such that section 15 of the Charter would be engaged. In Rodriguez v. Canada, the court held that the applicant had not established that a refugee claimant’s choices with respect to his or her travel into Canada is a personal characteristic that is immutable or the basis of historical prejudices or stereotypes within the meaning of section 15. In Kreishan v Canada, the Federal Court of Appeal determined that paragraph 110(2)(d) of the IRPA does not violate section 7 of the Charter.

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.

History of this provision
The earlier version of this provision that was enacted with the IRPA, but never came into force, read:"(3) The Refugee Appeal Division shall proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept written submissions from the Minister, the person who is the subject of the appeal, and 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.

The weight placed on such submissions should be consistent with Canada's obligation to cooperate with the UNHCR. See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.

=== 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 posing questions or introducing new evidence === The Refugee 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) of IRPA s. 110, 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.

When this provision was originally enacted in 2001, the provisions provided only for a paper-based appeal to the RAD. In 2012, the legislation was amended to also provide the added possibility of submitting new evidence or having an oral hearing in some limited circumstances. Furthermore, the original legislation from circa 2001 had provided that the Minister could only present written submissions. This provision was then modified in 2012 to allow the Minister to provide documentary evidence to the RAD as well.

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]. 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/165 - Powers of a Member. 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. The IRB Policy on National Documentation Packages in Refugee Determination Proceedings states that the use of NDPs does not preclude the disclosure of additional Country of Origin Information not contained in an NDP by the Division or a party to a proceeding. Similarly, the Board's Instructions for Gathering and Disclosing Information for Refugee Appeal Division Proceedings state that the RAD may decide to obtain information other than that provided in the RPD record and by the parties in the RAD proceedings. The Federal Court has spoken with approval of a RAD Member's ability to conduct their own research and to rely on that research, provided that they disclose it to the parties and give them an opportunity to respond. See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

Furthermore, the RAD has the jurisdiction to ask an appellant for additional explanations on inconsistent evidence which exists on the record. It is not obligated to send a matter back to the RPD for redetermination simply because it seeks to explore a potential credibility issue which was not canvased prior but instead has the jurisdiction to seek additional testimonial evidence even where the testimony is not regarding new evidence. See further: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division.

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.

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.

Criteria for presenting new evidence
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.

The Federal Court of Appeal also comments that "It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case." The Federal Court has observed that "in reading the subsection itself, one cannot say that the RAD is entirely without discretion in assessing the admissibility of new evidence within the confines of those three conditions themselves" and that while "the first two conditions, newness and reasonable availability, appear to be relatively objective and confer little, if any, discretion upon the RAD", "the third condition, whether the applicant could have reasonably been expected in the circumstances to have presented the evidence at the time the RPD rejected the refugee claim, is clearly quite broad and entails a certain degree of inherent discretion in its application."

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?
Considerations include:
 * Is the appellant attempting to prove an event or circumstance that post-dates the RPD decision? 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. For example, in Zeinaly v. Canada the Federal Court concluded that the RAD had reasonably refused to admit a counsellor’s letter, which, while dated after the RPD decision, only contained information that had existed at the time of the RPD hearing, thereby not being new. Similarly, RAD Member L. Gamble concluded that a psychological report, while dated after the RPD hearing, related to long-standing medical issues that pre-dated the RPD hearing, for which she had been receiving treatment since prior to the RPD hearing, and as such the report was not attempting to prove a new circumstance that arose after the rejection of the claim. In contrast, in Aboubakar v. Canada the Federal Court concluded that the RAD had acted unreasonably in refusing to admit photos of the appellant at an LGBTQ+ event which post-dated the RPD decision, commenting "the evidence of the applicant’s continued involvement with the LGBTQ+ community since the time of the RPD’s decision in this case is a new event". In this way, the applicant argued in that case, new evidence may be filed on appeal to corroborate an allegation that an appellant was seeking to advance at the RPD and it is entirely possible for a refugee protection claimant to file evidence on appeal of the continuity of political involvement or religious practice in Canada.
 * Does the new evidence simply establish the continuation of a pre-existing state? Evidence indicating that "nothing has changed" regarding pre-existing country conditions, for example the continued existence of domestic violence in a country, or the continued detention of specific Members of Parliament in a country, has generally not been taken to meet the test of being evidence that "arose after the rejection of the claim" since it is not something that, properly speaking, arose (in the sense of something emerging or becoming apparent) at any particular time following the RPD's rejection of the claim.
 * Is there any date associated with the newly submitted evidence? On their own, undated photos provided without evidentiary context do not establish that an event occurred after the RPD decision.
 * Is the appellant attempting to correct a deficient RPD record? 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.
 * Did the evidence arise shortly before 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 accepted 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?
Evidence that is available earlier may not become relevant until later in the process in ways that the person may not initially expect. Where evidence could not have reasonably been expected to have been presented (or, according to the French version, “normally have been expected” ) at the time of the rejection of the claim, it may be admitted on appeal. That said, an appellant cannot offer new evidence “every time he or she is surprised by the RPD’s decision.” As a general matter, an appeal to the RAD is not a second chance to submit evidence to address weaknesses identified by the RPD. However, the court observes that this condition for admitting new evidence "is clearly quite broad and entails a certain degree of inherent discretion in its application." 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.
 * Was the appellant's psychological state such that they could not reasonably have been expected in the circumstances to have presented the evidence at the time of the rejection? RAD Member T. Cheung accepted that an appellant only came to understand the state of his mental health after the RPD decision, when his physician noted the symptoms of a condition and referred him to a specialist. As such, this is not evidence which the person would reasonably have been expected to have presented before the RPD. Where there is evidence that a claimant's state of mind has had an impact on their behaviour, the RAD should consider not only whether this justifies admitting psychological evidence on point, but also whether their state of mind supports a conclusion that they could not reasonably have been expected in the circumstances to have presented other evidence to the RPD. See also the section below on personal factors, gender, trauma, language, and self-represented status: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division.

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, newness. Some Federal Court decisions add the requirement that the evidence be "material" to the decision to this list, but it is the view of this author that 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. This is discussed more below.

The Federal Court of Appeal has commented that "It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case," and it would appear that this comment applies to the following so-called “implicit” criteria in subsection 110(4). RAD decisions have held that, when interpreting these criteria, there is a "low bar for admissibility". The RAD may admit new evidence that meets the “source and circumstance” credibility threshold and still give it little or no weight when assessing its credibility and probative value within the context of all the evidence in deciding the appeal.

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.

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. In general, this newness factor under Singh is considered “redundant” and it is said that it “does not really add” to what is required under s. 110(4). 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. In Naggayi v. Canada, the court upheld a decision that rejected a newly tendered marriage document because its availability contradicted the appellant's prior testimony that she had been unable to obtain it because her husband had it. In Onyeawuna v. Canada, the RAD concluded that a letter ostensibly from the Nigerian police was not credible because it did not explain how or why the police would assist a known fugitive. In Simone v. Canada, the court upheld a decision that rejected a newly tendered identity document on the basis that he had indicated that the document had been previously surrendered the document to his government's authorities before they had issued him a replacement document ten years prior, concluding "it is not credible that after surrendering his old birth certificate to the authorities in 2009, the Appellant was suddenly somehow able to retrieve this document ten years later to disclose for his appeal."
 * 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.
 * Does the new evidence include reasonably expected security features? The RAD may conclude that evidence is not credible where it lacks reasonably expected security features. For example, in Kumar v. Canada, the court upheld a finding that newly tendered evidence was not credible based on a “significant difference” between the affiant’s signature on one of the new affidavits as compared to two affidavits sworn by the same affiant that had been before the RPD. In the former, the last letter of the signature looked like a “z”; in the latter, it looked like an “n”. In Ali Khan v. Canada, the court upheld a finding that a letter lacked credibility because of a discrepancy between the signature on it and the signature on the author's attached driver's licence.
 * 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. However, fortuitous timing alone may not always be a sufficient standalone ground on which to dismiss evidence, since, as the RAD has observed “it is, of course, not impossible that the events would occur during this time and timing alone [may] very well not be a basis to find the Appellant’s story and the new evidence supporting it to be lacking in credibility.”
 * 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. Internal inconsistency between the evidence and the testimony of an applicant can also give rise to a negative credibility finding.
 * Are there other credibility issues with the source of this new evidence? The rejection of a witness’s affidavit on grounds of credibility is a reasonable matter to consider as part of assessing the source of subsequent evidence from that witness. At times, several interrelated documents are submitted, and their credibility may be assessed together; for example, in Onyeawuna v. Canada the RAD found that a letter from a lawyer that discussed a new police letter was “coloured with the same relevance and credibility problems as the new letter from the police”.
 * 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 their story.
 * For further context, see also: Canadian Refugee Procedure/IRPA Section 170 - Proceedings.

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. Factors that have been looked at in such analyses include:
 * Does the appellant refer to the evidence in their arguments on appeal? RAD Member K. Qureshi concluded in one case that as a result of the appellants’ failure to make submissions, they were unable to discern a psychological report's relevance to the appeal: "While the principal Appellant may very well suffer from psychological impairments, the Appellants have not explained how this impacts the claim; for example, on the ability to testify, or live in an IFA etc." The report was rejected on this basis.
 * Does the evidence relate to the determinative issue on appeal or only another issue? 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." 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 did not relate to the credibility findings of the RPD.

Materiality
As noted above, some Federal Court decisions note that evidence must also be "material" to be admitted on appeal. Evidence is material if it could reasonably be expected to have affected the result of the RPD’s decision. In the view of this author, 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. The Federal Court of Appeal in Singh v. Canada answered a certified question on point as follows: "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." However, the extent to which different Federal Court justices have articulated that there is a materiality requirement for evidence admission at the RAD may call this interpretation of Singh v. Canada into question - this includes comments by Justice Bell, Justice Ahmed, Justice Gascon, Justice Little, and Justice Sadrehashemi. Indeed, some panels of the RAD appear to have taken this approach when concluding that 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. If the materiality of evidence is a condition precedent for admitting it before the RAD, it is said that the RAD must take a “generous approach” to the notion of materiality. In the Pre-Removal Risk Assessment context, the Federal Court of Appeal phrased the materiality question as follows: "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." This approach is best not followed at the RAD; in the words of the Federal Court, the materiality test that the RAD applies is less rigid since the RAD has a broader mandate and can accept new evidence that, while not determinative, has an impact on the overall assessment of the claim. Factors that have been looked at in such analyses include:
 * Should any weight be assigned to the evidence? The court has noted that it is impossible to conclude new evidence, once admitted, has no weight because, if the evidence could not have been expected to affect the result, it would not have been admissible.

The RAD may refuse to accept new evidence that is not credible without holding a hearing
In situations where the RAD rejects new evidence on the basis that the evidence is not credible, it need not hold an oral hearing to assess the credibility of the evidence. The Federal Court holds that the lack of an oral hearing, by itself, does not give rise to a breach of procedural fairness. This is because in such a situation the RAD makes a credibility finding about documents, not about the applicant.

See: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division.

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. In Hashim v. Canada, the Court found even though documents did not constitute new evidence and that it had not accepted them on that basis, the decision's further analysis of those documents “was not intended to lessen this finding, but rather was conducted as a matter of completeness.”

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
The RAD may accept only part of a particular document on appeal. For example, in Bhuiyan v. Canada the RAD acted properly where it acceptd an affidavit from the appellant, but not the exhibits attached to the affidavit. 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 in 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. However, the RAD would err if it admitted evidence, but then assigned it no weight: the court has held that if evidence could not have been expected to affect the result, it will not be admissible.

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, the 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 Court has concluded that “an oral hearing will generally be required when the statutory criteria have been satisfied”. 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." That said, there is no right to an oral hearing.

Furthermore, in situations where the RAD rejects new evidence on the basis that the evidence is not credible, it need not hold an oral hearing to assess the credibility of the evidence. The lack of an oral hearing, by itself, does not give rise to a breach of procedural fairness. This is because in such a situation the RAD makes a credibility finding about documents, not about the applicant.

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). This differs from the cognate provision for the PRRA context where the Federal Court has held that an applicant does not need to meet all the criteria under that section before an oral hearing is required. In contrast, this section of the IRPA is clear that all three subsections of 110(6) must be present for a hearing to be held with the phase "à la fois" that precedes the criteria in the French text ("La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois...").

The criteria for determining whether to hold an oral hearing set out in subsection 110(6) of the IRPA “are unquestionably related to the materiality of the new documentary evidence”. The following subsection 110(6) criteria are said to be "associated with the existence of new documentary evidence". The section of the regulations on having a hearing in the PRRA context, that this paragraph is modelled on, is said to be "an awkwardly worded section".

(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. 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. As Justice Norris has observed in the analogous PRRA context, while it can be difficult to draw a bright line, “doubts about the veracity of evidence do not necessarily amount to concerns about an applicant’s credibility”. This factor is composed of two elements: (i) the new evidence must raise a serious issue and (ii) this serious issue must be in respect of the credibility of the person. In approaching this question, a panel can consider the following questions:
 * Does the new evidence raise a serious issue?
 * 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.
 * Is the serious issue raised by the new evidence in respect of the credibility of the person?
 * Do credibility questions emerge from the evidence, or only questions regarding the probative value 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. Evidence from third parties recounting new incidents does not normally impact on an appellant’s credibility.
 * Does the new evidence call into question the credibility of an appellant or of third parties? In Ariyibi v. Canada, the court concluded that the RAD was not obligated to conduct an oral hearing to assess the credibility of the new evidence that had been offered, as the new evidence did not raise a serious issue with respect to the credibility of the appellants, but rather, called into question the credibility of the third parties who authored the new evidence. In Kanakarathinam v. Canada, the Federal Court noted that 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.

(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. The RAD may decide that it is able to sufficiently consider the evidence and assess its probative value without holding an oral hearing. It may assign very little weight to the “new” evidence and find the new evidence which was accepted could not justify allowing the claim and the conditions in the subsection have not been met. In Simone v. Canada, the court upheld a RAD decision that in a case where the appellant had not established his identity, and had submitted fraudulent evidence about his identity, newly accepted affidavits from two friends in Toronto did not justify holding an oral hearing because they did not justify allowing or rejecting the claim given that the evidence could not outweigh the other credibility concerns with the appellant's identity on the record.

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.

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. Some panels of the RAD and Federal Court have concluded that the answer 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.

To this end, the Federal Court has held that in some circumstances, an oral hearing ought to be held to properly consider new evidence. But see the following 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. Furthermore, the Federal Court stated categorically in Hossain v. Canada that "There is no statutory basis for the RAD convening an oral hearing to determine the admissibility of evidence."

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.

History of this provision
s. 111(1.1) was previously titled "Manifestly unfounded" and stated "(1.1) For greater certainty, if the Refugee Appeal Division does not set it aside, the Refugee Protection Division’s determination under section 107.1 is confirmed." This was repealed in 2012.

IRPA s. 111(1)(a): the Refugee Appeal Division may confirm the determination of the Refugee Protection Division
After considering the appeal, the Refugee Appeal Division may confirm the determination of the Refugee Protection Division. Such a determination may be justified where the RAD either determines that the RPD did not err or that any error does not justify overturning the decision. For example, panels of the RAD have relied on jurisprudence requiring an applicant to demonstrate that a breach of procedural fairness was material to the tribunal’s decision before setting aside or overturning the decision, so the mere fact of such a breach may not suffice to justify setting aside an RPD determination. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

The RAD may, as a matter of jurisdiction, substitute its own determination of the merits of the refugee claim on a basis that was not addressed by the RPD in its decision. One line of jurisprudence holds that it is also not required to determine that the RPD erred before considering an alternate ground on which to uphold a decision. However, another line of jurisprudence holds that when the RAD confirms the decision of the RPD on another basis, it must do so only after it determines the existence of an error in the RPD decision. The first line of jurisprudence appears to be favoured for the following reasons:


 * Such an interpretation of the RAD's jurisdiction is most consistent with its mandate to be "decisive, fair and efficient".
 * That interpretation is most consistent with the statutory language given that paragraphs 111(1)(a) and 111(1)(b) of the IRPA gave the RAD the power to confirm or substitute the “determination” of the RPD, and as such, it is not bound by the reasoning in the RPD’s decision.
 * The restrictions on returning claims to the RPD for redetermination under subsection 111(2) of the IRPA suggests that Parliament’s intent was to have the RAD finalize refugee protection claims where it can do so fairly, including by confirming a determination on alternative grounds.

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. This has implications for when the RAD may raise new issues and what limitations exist on the RAD's ability to set aside the determination of the RPD.

The RAD must conduct its own assessment of the evidence de novo. Inherent in this jurisdiction is the power to raise new issues. See: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division.

When substituting the determination that, in its opinion, should have been made, the RAD must identify what specific error the RPD made that justifies its intervention. One may look to s. 110 of the IRPA which provides that an appeal is to be on a question of law, of fact, or of mixed law and fact. The fact that the RAD is an appellate tribunal is relevant to the nature of the analysis that is expected in its reasons when it reverses a decision of the RPD that that Division had offered reasons for. The Federal Court notes that "the RAD’s role is not to carry out a de novo examination of the refugee claim that the RPD had to address" and as such "it is insufficient for the RAD to ask whether it would have reached a different conclusion had it been in the RPD’s position, without regard for any aspect of the RPD’s decision". In that case, the Federal Court held that "it was insufficient, in my view, for the RAD to give the respondent the benefit of the doubt without stating how the RPD erred in not doing the same". As such, while Waldman argues that 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, this should not be taken as licencing the RAD to act arbitrarily and intervene to overturn the RPD's finding without, for example, identifying why it is weighing the evidence differently and why the RPD was wrong to do otherwise.

See also:


 * Canadian Refugee Procedure/162 - Board Jurisdiction and Procedure
 * Canadian Refugee Procedure/Principles for the interpretation of refugee procedure
 * Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division

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.

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 RAD 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.

In order to meet the criteria set out in s. 111(2)(b), the RAD must conclude that the RPD had a meaningful advantage regarding findings of credibility. 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." Not all decisions that turn on credibility necessitate returning a matter to the RPD in order to reach new findings; the RAD may reach its own assessment of credibility based on the evidentiary record before it. 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.

As a general proposition, 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. This discretion stems from the use of the word "may" in s. 111(2) ("may make the referral") as opposed to an imperative wording such as "shall". However, as the Federal Court of Appeal held in Singh v. Canada, where the RAD finds that all of the evidence should be heard again in order to make an informed decision, it must refer the case 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." Similarly, in cases where procedural fairness was breached at the RPD and an issue was not adequately canvased or put to the claimant, the RAD may be obliged to return the matter to the RPD where it cannot remedy the procedural fairness breach on appeal. See: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

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. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

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. In appropriate circumstances, a decision-maker may fashion a creative remedy in order to prevent a potential injustice. The IRB Policy on Redeterminations Ordered by the Refugee Appeal Division provides that where the RAD has determined that there was a denial of natural justice in the original hearing and provides specific directions, the RPD will comply with those directions.

There are any number of such directions that can be provided, including that:

Where the Federal Court provides directions, and those directions cannot be complied with, then parties may seek further direction from the court. This author is unaware of any analogous precedents regarding RAD directions.
 * 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. Similarly, when remitting matters, the Federal Court has specified in some cases that "Given that the previous PRRA officer accepted the Applicant’s evidence in relation to his involvement in the BNP, this aspect of his profile—namely his previous role as a “root level leader” of the BNP—need not be reconsidered unless there are new reasons to doubt its veracity."
 * There be priority scheduling for the remitted matter.
 * When remitting matters, the Federal Court has specified in some cases that a re-hearing may not be necessary as the parties may be able to address the limited issue on redetermination in writing.