Persuasive decisions are decisions that have been identified by a division head as being of persuasive value in developing the jurisprudence of the Refugee Protection Division (RPD) or Refugee Appeal Division (RAD). They are decisions that members are encouraged to rely upon in the interests of consistency and effective decision-making.
I am of the view that the reasons for decision in TC0-09011 are of persuasive value to members of the RAD.
This decision determines that the Federal Court of Appeal's decisions in
Majebi, 2016 FCA 274 and
Abel, 2021 CAF 131 do not prohibit the
RAD's consideration of admissible new evidence about Article 1E of the Refugee Convention. Considering
Abel in view of the
RAD's jurisdiction (Huruglica, 2016 FCA 93 and
Rozas del Solar, 2018 FC 1145), the Member in TC0-09011 determined that the
RAD's statutory obligation to consider admissible new evidence “unlocks” the restrictions set out in the
Majebi decision (Decision TC0-09011, para. 80-83) - this occurs where the new evidence renders the
RPD's decision “in error”
(Majebi at para 9). This approach, the Member found, was consistent with the
RAD's larger obligation to engage in a correctness review, which demands that the
RAD decide the issues “exactly as it thinks it should” based on the record before it and substitute its own conclusion if it ends up being different than that of the
RPD (Rozas del Solar at para. 15).
Members are encouraged to adopt the reasoning of the persuasive decision when the facts of the case before them are sufficiently similar to those in that case.
Signed by Paula Thompson
Deputy Chairperson, Refugee Appeal Division
August 24, 2023