Refugee Claim Fails on Admissibility of ‘New’ Evidence, The Lawyers Weekly (May 20, 2016, p. 17)

The law of evidence controls the presentation of facts before courts and tribunals. It is made up of common law concepts, statutory provisions and constitutional principles. Admissibility of “fresh” documentary evidence on appeal before the Refugee Appeal Division of the Immigration and Refugee Board (RAD) is governed by subsection 110(4) of the Immigration and Refugee Protection Act (“IRPA”). In Singh v. Canada (Minister of Citizenship and Immigration), 2016 FCA 96, the Federal Court of Appeal considered, for the first time, the statutory interpretation of that subsection.

In allowing the appeal, the FCA concluded that the wording of subsection 110(4) is neither ambiguous nor grants any discretion to the RAD. The fact that evidence corroborates facts, contradicts a decision-maker’s findings or clarifies evidence does not make it “new” evidence. The newness criterion must be assessed against the explicit statutory conditions in subsection 110(4) of IRPA.

In Singh, the Refugee Protection Division (RPD) dismissed Parminder Singh’s claim for refugee protection because he had, inter alia, failed to establish his identity. On appeal to the RAD, Parminder Singh attempted to file the additional evidence, namely his diploma that would have corroborated his claim of having studied with Bhupinder Singh. This relationship caused the Indian police to allegedly arrest and torture Parminder Singh in order to obtain information about Bhupinder Singh. Consequently, he fled to Canada.

The RAD refused to admit the diploma into evidence on the basis that the Canada Border Services Agency sent a copy of the diploma to Parminder Singh’s former counsel prior to the refugee hearing. Having considered that Parminder Singh did not allege any incompetence or made a complaint against his former counsel, the RAD resolved that he and his counsel had access to the diploma.

On a judicial review of the RAD’s decision, the Federal Court deemed it unreasonable for the RAD to have strictly applied the admissibility of new evidence criteria, because the diploma could have been material to demonstrate that the RPD erred in making negative findings with respect to Parminder Singh’s credibility, namely that he had not established that he had attended school with Bhupinder Singh. It also found that it was unreasonable for the RAD to make a complaint against a former lawyer a prerequisite for filing new evidence or expect Parminder Singh to know the procedure for filing such a complaint. Having granted the judicial review, the Federal Court also certified questions of general importance, which paved the way for the minister’s appeal.

On appeal, the FCA resolved that the RAD’s interpretation of subsection 110(4) of IRPA is subject to review on a reasonableness standard, in accordance with the presumption that the RAD’s interpretation of its “home” statute, IRPA, is owed deference.

Relying on the Supreme Court of Canada’s historic decision in Kanthasamy v. Canada (CIC), 2015 SCC 61, which reframed the test for humanitarian and compassionate applications, the FCA reminded that the presence of a certified question is not determinative of a standard of review, because it is the judgment itself that is ultimately the subject of an appeal and not merely the certified question.

Dealing with the RAD’s admissibility of the new documentary evidence, the FCA opined that subsection 110(4) of IRPA is not written in an ambiguous manner and does not grant any discretion to the RAD to disregard the conditions set out therein. Subsection 110(4) restricts evidence that may be presented to “only evidence” that arose after the rejection of the refugee claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.

The FCA upheld the RAD’s conclusion that the diploma was not a new piece of evidence, because Parminder Singh’s counsel had access to it. In support of its conclusion, the FCA observed: “it is settled that an applicant must live with the consequences of the actions of his counsel.” The FCA ultimately concluded that because Parminder Singh had not raised the issue of his lawyer’s incompetence nor lodged any complaint against her, the RAD had no choice but to reject the new evidence, in accordance with subsection 110(4) of IRPA.

As a side, in March 2014 the Federal Court adopted a protocol outlining the procedure when a party wishes to make an allegation of professional negligence. It sets out, inter alia, the obligation to send a notice to counsel who is the subject of the allegations and invite him or her to provide a response that could be submitted to the court.

Singh clarifies that the RAD is required to assess the admissibility of new documentary evidence against the explicit requirements in subsection 110(4) of IRPA. In the process, the RAD could also be guided, subject to the necessary adaptation, by the implicit criteria the FCA outlined in Raza v. Canada (CIC), 2007 FCA 385, which concerned the statutory interpretation of paragraph 113(a) of IRPA that bears close affinity in both language and spirit to the wording in subsection 110(4) of IRPA.

Notably, the requirement concerning the materiality of the new evidence will be assessed in the context of subsection 110(6) of IRPA, for the sole purpose of determining whether the RAD may hold a hearing.