Chapter 3. New issues

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3.1. What is a new issue?
3.2. The Refugee Appeal Division's jurisdiction to raise new issues

3.2.1. Does the Refugee Appeal Division have jurisdiction to raise a new issue if it does not find an error in the Refugee Protection Division's decision?

3.3. The requirement to give notice of a new issue to the person and to the Minister

3.3.1. What is the scope and content of the notice of a new issue?

3.3.1.1. General principles
3.3.1.2. Content of notice in the Refugee Appeal Division context

3.3.2. Remedies for failing to give notice of a new issue

3.3.2.1. The general rule and exception to the general rule

3.4. No breach of procedural fairness for the Refugee Appeal Division to raise a new issue and not address it in its reasons
3.5. Case law on new issues at the Refugee Appeal Division

3.5.1. Cases where the Federal Court found the Refugee Appeal Division raised a new issue
3.5.2. Cases where the Federal Court found the Refugee Appeal Division did not raise a new issue

Notes

3. New issues

3.1. What is a new issue?

The Courts have found the following factors relevant in identifying a new issue:

Issues that are legally and factually distinct from the grounds of appeal raised by the parties and cannot reasonably be said to stem from the issues raised on appeal.^{Note 1}
Issues where the RPD makes no determination.^{Note 2}

Not all these factors need to be satisfied for the issue to be identified as a new issue.

Despite the above factors, it is acknowledged that “there is a fine (and sometimes blurred) line” between situations where the RAD raises and deals with a new issue and those where it simply refers to an additional piece of evidence on the record to support an already existing conclusion of the RPD on a factual assessment or on an existing credibility issue.^{Note 3}

As the cases discussed later in this chapter demonstrate, the Federal Court’s application of these factors to the facts and issues before them has resulted in conflicting case law. In similar cases, the Court has found the RAD’s findings to be a new issue, while in other cases has found the opposite.

3.2. The Refugee Appeal Division's jurisdiction to raise new issues

It is accepted in the jurisprudence that the RAD has the jurisdiction to raise an issue on its own initiative, which was not addressed by the RPD in its reasons nor raised by a party on appeal.^{Note 4} The Federal Court has also found that deciding an appeal on a basis not addressed by the RPD raises an issue of procedural fairness, rather than one of jurisdiction.^{Note 5}

3.2.1. Does the Refugee Appeal Division have jurisdiction to raise a new issue if it does not find an error in the Refugee Protection Division's decision?

There is conflicting jurisprudence about whether the RAD must find an error in the RPD decision before deciding the appeal on another basis.

In Angwah, the Federal Court took the view that the RAD’s failure to make a finding that the RPD erred before making its own determination on a new ground was not in keeping with the Court’s decision in Huruglica, and therefore, unreasonable.^{Note 6}

However, in Okechukwu the Court stated that it was not necessary for the RAD to find the RPD erred before the RAD can consider an alternate ground on which to uphold a decision dismissing the claim. In the Court’s view, this would be contrary to the legislator’s intent and the Federal Court of Appeal’s decision in Huruglica that matters heard by the RAD not be referred back to the RPD for redetermination unless it is clear that: the RPD had erred in law or in fact or mixed fact and law; and the RAD cannot make a decision without hearing evidence presented to the RPD.^{Note 7}

In this case, the RAD reasoned that it could decide on an alternate ground because paragraphs 111(1)(a) and 111(1)(b) of the Immigration and Refugee Protection Act (IRPA) gave it 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. Furthermore, the RAD concluded, the restrictions on returning claims to the RPD for redetermination under subsection 111(2) 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.^{Note 8}

3.3. The requirement to give notice of a new issue to the person and to the Minister

If the RAD pursues a new issue, procedural fairness requires that the party or parties affected be given notice and an opportunity to make submissions.^{Note 9}

The Federal Court has also held that the Minister has a broad and continuing interest in appeals; and therefore, has a right to procedural fairness even in appeals in which the Minister is not yet a party.^{Note 10} This right includes a right to notice that a new issue is being considered by the RAD and an opportunity to make submissions in relation to the new issue.^{Note 11}

3.3.1. What is the scope and content of the notice of a new issue?

3.3.1.1. General principles

The appropriate procedure to give notice of a new issue will vary depending on the context and the circumstances of a given case and provided the following guidelines:

Notification of the new issue may occur before, during, or after the hearing. The issue should be raised as soon as is practically possible after the issue crystallizes to avoid any undue delay in the proceedings.
Notification should not contain too much detail or indicate that the court has already formed an opinion; however, it must contain enough information to allow the parties to respond to the new issue.
Ultimately, the adequate content of notice will have to be determined on a case-by-case basis. It will depend on several factors, including the complexity of the issue and the obviousness of the issue on the face of the record.^{Note 12}

The Federal Court has commented that how such notice should be given in refugee appeals is for the RAD to determine, but the suggestions in R v. Mian listed above may be of assistance.^{Note 13}

3.3.1.2. Content of notice in the Refugee Appeal Division context

The jurisprudence has not described in great length what should be included or how much detail should be provided in the RAD’s notice of a new issue. The Federal Court has said that although the scope of the duty will vary, at minimum, the parties should have some opportunity to respond to the RAD’s concerns.^{Note 14}

In several cases, parties have challenged the level of detail provided by the RAD in its notice of a new issue.

In Azenabor, a case involving new issues of credibility, the Federal Court stated that the level of detail required in the notice will depend on the facts, but it does not require the RAD to put each of its credibility concerns to the person. In that case, it was sufficient notice for the RAD to raise concerns about the credibility of the person’s police report in comparison to sample police reports in the National Documentation Package (NDP), without enumerating all its credibility concerns with their report.^{Note 15}

In Berhani, the person argued that the RAD failed to give sufficient notice of the case to meet on the issue of prospective risk in the IFA location. In the notice, the RAD sought submissions on the continuing motivation of the agent of persecution in the context of an omission from the person’s narrative. The Federal Court found there was no breach of procedural fairness because the notice about the omission spoke to the continuing motivation of the agent of persecution, which engaged the first branch of the IFA test.^{Note 16}

However, in Nasr the Federal Court allowed the judicial review of a RAD decision due to the lack of detail in the RAD’s notice of a new issue. In its notice, the RAD simply stated it found “the dates of the documents and the alleged issuing authorities to be problematic” and noted “that police stations with detention facilities in Egypt are listed in the Global Detention Project report”. The RAD then provided a link to the report in the notice. In its decision, the RAD found the person’s documents to be inauthentic because the name of the police stations on the person’s documents did not match the names of the police stations for the city in question in the Global Detention Project report. The Court held that the RAD’s vague reference to concerns with “the alleged issuing authorities” and a link to the report meant that the person would have been unaware of what the RAD’s real concern was with the documents.^{Note 17}

3.3.2. Remedies for failing to give notice of a new issue

3.3.2.1. The general rule and exception to the general rule

Generally, if the Court finds that the process was unfair, it will send the matter back to the RAD to be decided again.^{Note 18} However, the Court may disregard this general rule if the Court finds that the unfairness would not have impacted the outcome.^{Note 19}

This exception to the general rule has been recognized in several cases where it was argued that the RAD breached procedural fairness by raising a new issue without notice.^{Note 20} However, in most of the cases that discuss the exception to the general rule, the Federal Court held that the RAD did not raise a new issue.^{Note 21}

3.4. No breach of procedural fairness for the Refugee Appeal Division to raise a new issue and not address it in its reasons

Where the new issue is not determinative of the appeal, the Federal Court has held that it is not a breach of procedural fairness for the RAD to raise a new issue, but not address it in its reasons or refer to the parties’ submissions and supporting evidence on the new issue.^{Note 22}

3.5. Case law on new issues at the Refugee Appeal Division

The most common circumstances when it is argued the RAD raised a new issue is when the RAD makes additional credibility findings. However, arguments that the RAD raised a new issue also appear in the consideration of issues of identity, IFA, state protection, nexus, well-founded fear, exclusion, and other matters considered by the RAD in its decision-making. What follows are examples of the circumstances where the Court has found the RAD raised a new issue as well as those where the Court found the RAD did not raise a new issue.^{Note 23}

The following cases demonstrate that the Federal Court’s application of the above-mentioned factors, to the facts and issues before them, has resulted in conflicting case law. In similar cases, the Court has found the RAD’s findings to be a new issue, while in other cases has found the opposite.

3.5.1. Cases where the Federal Court found the Refugee Appeal Division raised a new issue

The Federal Court has found that the RAD raised a new issue in making findings on many different elements of a refugee claim, including:

Credibility

Additional reasoning or substantive findings^{Note 24}
Witness evidence^{Note 25}
General finding of lack of credibility^{Note 26}
Assessment of documents, including authenticity^{Note 27}
Additional findings and the National Documentation Package (NDP)^{Note 28}

Identity^{Note 29}
Internal flight alternative (IFA)^{Note 30}
State protection^{Note 31}
Well-founded fear of persecution

Objectively well-founded fear of persecution^{Note 32}
Prospective risk^{Note 33}

Sur place claims^{Note 34}
Exclusion^{Note 35}
Admissibility of new evidence^{Note 36}

3.5.2. Cases where the Federal Court found the Refugee Appeal Division did not raise a new issue

The Federal Court has found the RAD did not raise new issues in making findings on many different elements of a refugee claim, including:

Credibility

Additional reasoning or substantive findings^{Note 37}
Assessment of documents, including authenticity^{Note 38}

Sufficiency of the evidence^{Note 39}
State Protection^{Note 40}
Nexus^{Note 41}
Well-founded fear of persecution^{Note 42}

Subjective fear^{Note 43}
Prospective risk^{Note 44}

Admissibility of new evidence^{Note 45}
Country conditions evidence^{Note 46}
Jurisprudence and Jurisprudential Guides (JGs)^{Note 47}

Notes

R v. Mian, 2014 SCC 54, paragraph 30 (CanLII). The Federal Court in Ching v. Canada (Minister of Citizenship and Immigration), 2015 FC 725, paragraphs 66—67 (CanLII)adopted the Supreme Court of Canada’s definition of “new issue” to the RAD administrative appeal context.

Return to note 1 referrer

Tan v. Canada (Minister of Citizenship and Immigration), 2016 FC 876, paragraph 40 (CanLII).

Return to note 2 referrer

Kwakwa v. Canada (Minister of Citizenship and Immigration), 2016 FC 600, paragraph 30 (CanLII).

Return to note 3 referrer

For example, see Angwah v. Canada (Minister of Citizenship and Immigration), 2016 FC 654, paragraph 15 (CanLII) and Okechukwu v. Canada (Minister of Citizenship and Immigration), 2016 FC 1142, paragraph 27 (CanLII) where the Court found that the RAD is “clothed with jurisdiction” to decide on a ground not considered by the RPD.

In Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 67 and 87 (CanLII), the Federal Court confirmed that it was within the RAD’s jurisdiction to consider issues on appeal that had not been addressed by the RPD, and therefore, not raised in appeal submissions.

In Ipaye v. Canada (Minister of Citizenship and Immigration), 2019 FC 1338, paragraph 16 (CanLII), the Court stated: “The jurisprudence is clear. The RAD may, on the basis of the record before the RPD and any additional evidence or submissions properly placed before it on appeal (Immigration and Refugee Protection Act, SC 2001, chapter 27, subsections 110(3), (4), (5) and (6)), decide a matter on a ground not considered by the RPD. However, where the RAD is to determine a matter not previously considered, fairness requires that it give the person notice and the opportunity to make submissions.” That said, in earlier cases the Federal Court found the RAD did not have jurisdiction to raise new issues.

In Jianzhu v. Canada (Minister of Citizenship and Immigration), 2015 FC 551, paragraphs 7 and 12 (CanLII), the Court held the RAD did not have jurisdiction to consider the person’s sur place claim because the RPD did not make any findings in relation to the sur place claim, nor was it raised by the person on appeal. Instead, the Court found the RAD should have sent the claim back to the RPD to be redetermined. Similarly, in Ojarikre v. Canada (Minister of Citizenship and Immigration), 2015 FC 896, paragraph 20 (CanLII),the Court agreed with the person’s submissions that the RAD does not possess the jurisdiction to consider an issue that, although fully canvassed before the RPD, was not relied upon in its decision and therefore was not the subject matter of the person’s appeal.

Return to note 4 referrer

Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraphs 67—72 (CanLII). In coming to this conclusion, the Court at paragraphs 67 to 72 rejected the Minister’s submission that paragraph 111(1)(b) of the IRPA imposes a jurisdictional constraint on the powers of the RAD to determine a claim for protection on a basis not addressed by the RPD. The Court reasoned that:

Considering the text, context and purpose of the provision, the words “the determination” in paragraph 111(1)(b) do not refer to any and all findings by the RPD but, rather, only to that tribunal’s finding on the ultimate issue of whether the claimant is a Convention refugee (or a person in need of protection).
This interpretation of paragraph 111(1)(b) is consistent with the well-established view of paragraph 111(1)(a) of the IRPA, explained by the Court of Appeal in Huruglica, that “[i]f there is an error, the RAD can still confirm the decision of the RPD on another basis”.
There is no suggestion in Huruglica that the RAD cannot, 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.
It bears noting that both Jianzhu and Ojarikre (cases where the Court found the RAD did not have jurisdiction), were decided before Huruglica.

Return to note 5 referrer

Angwah v. Canada (Minister of Citizenship and Immigration), 2016 FC 654, paragraph 16 (CanLII).

Return to note 6 referrer

Okechukwu v. Canada (Minister of Citizenship and Immigration), 2016 FC 1142, paragraph 30 (CanLII).

Return to note 7 referrer

Okechukwu v. Canada (Minister of Citizenship and Immigration), 2016 FC 1142, paragraph 5 (CanLII).

Return to note 8 referrer

Ching v. Canada (Minister of Citizenship and Immigration), 2015 FC 725, paragraph 71 (CanLII).

Return to note 9 referrer

Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraphs 82—83 (CanLII).

Return to note 10 referrer

Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 80 (CanLII). See also paragraph 87, “when the case has materially shifted away from the RPD’s decision and the appeal as it was framed by [the person], the RAD breached the requirements of procedural fairness by deciding the appeal on the basis on which it did without first giving the Minister notice that a new issue was in play and an opportunity to be heard.”

Return to note 11 referrer

R v. Mian, 2014 SCC 54, paragraphs 57—58 (CanLII). With respect to the amount of detail to be provided in a notice of a new issue, the Federal Court of Appeal in CSX Transportation, Inc. v. ABB Inc., 2022 FCA 96, paragraph 9 (CanLII), stated that when raising a new issue the decision-maker does not need to flesh out the issues in much detail for the parties, but they have “to flag the issues with enough particularity to facilitate the making of submissions.”

Return to note 12 referrer

Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 87 (CanLII).

Return to note 13 referrer

Ching v. Canada (Minister of Citizenship and Immigration), 2015 FC 725, paragraph 76 (CanLII).

Return to note 14 referrer

Azenabor v. Canada (Minister of Citizenship and Immigration), 2020 FC 1160, paragraphs 36—40 (CanLII). In Azenabor, the RAD sent a letter to the person noting two discrepancies between the police report they provided to the RPD and the sample in the National Documentation Package (NDP) and asked for submissions from the person. In its reasons, the RAD noted additional discrepancies beyond those mentioned in the letter.

See also, Ibrahim v. Canada (Minister of Citizenship and Immigration), 2018 FC 685, paragraphs 24—27 (CanLII), where the Court found that the RAD gave sufficient notice when it sent the person a letter seeking an explanation for why their testimony at their RPD hearing that their brother attended the police station with them was not mentioned in their narrative.

Return to note 15 referrer

Berhani v. Canada (Minister of Citizenship and Immigration), 2021 FC 1007, paragraphs 26 and 30 (CanLII).

Return to note 16 referrer

Nasr v. Canada (Citizenship and Immigration), 2022 FC 757, paragraphs 30—34 (CanLII).

Return to note 17 referrer

Marin v. Canada (Minister of Citizenship and Immigration), 2018 FC 243, paragraph 39 (CanLII).

Return to note 18 referrer

Marin v. Canada (Minister of Citizenship and Immigration), 2018 FC 243, paragraph 39 (CanLII), citing Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202 (CanLII); and Canada (AG) v. McBain, 2017 FCA 204, paragraph 10 (CanLII). A reviewing court may disregard a breach of procedural fairness “where the outcome is legally inevitable.”

Return to note 19 referrer

In Marin v. Canada (Minister of Citizenship and Immigration), 2018 FC 243, paragraphs 39—42 (CanLII), the Federal Court found that the RAD did not rely on a new issue, and therefore did not breach procedural fairness in failing to give notice. However, it stated if it found the RAD raised a new issue which required giving notice to the person, the “alleged breach was not of such a material nature that it would have justified quashing of the RAD’s decision and remitting it for a third determination by a different officer…It is apparent that the decision maker would have reached the same decision notwithstanding the time stamp differences and no purpose would be achieved by remitting the appeal for reconsideration”.

In Jayasinghe Arachchige v. Canada (Minister of Citizenship and Immigration), 2020 FC 509, paragraph 89 (CanLII), the person argued that the RAD raised their failure to claim asylum in the USA as a new issue without giving them notice or an opportunity to respond to it. The Federal Court found that: “given the [person’s] failure to establish any facts that would place them at risk of persecution if they returned to Sri Lanka, it is apparent that the RAD would have reached the same conclusion even if it had not referred to their failure to claim in the USA, and that it would be pointless to return this matter for reconsideration on this ground because the outcome is legally inevitable.”

Return to note 20 referrer

See for example, Corvil v. Canada (Minister of Citizenship and Immigration), 2019 FC 300, paragraph 16 (CanLII) and Yimer v. Canada (Minister of Citizenship and Immigration), 2019 FC 1335, paragraph 18 (CanLII). In Corvil and Yimer, the Federal Court found that even if the RAD breached procedural fairness by raising a new issue and making additional credibility findings without notice, the RAD’s upholding of the RPD’s other conclusions was sufficient to warrant dismissal of the appeal. In the words of the Court, “the demerits of the claim are such that it would in any case be hopeless.”

Return to note 21 referrer

In Correa Rodriguez v. Canada (Minister of Citizenship and Immigration), 2021 FC 937, paragraphs 8—12 (CanLII), the RPD rejected the claim on the determinative issue of credibility. On appeal, the RAD gave notice of the new issue of IFA, but ultimately dismissed the appeal on the determinative issue of credibility. The Federal Court held that given the RAD’s determination that the person was not credible on the central elements of their claim, including of the existence of a prospective risk, there was no need for the RAD to consider IFA.

Return to note 22 referrer

In R v. Mian, 2014 SCC 54, paragraphs 31—32, 34 (CanLII), the Supreme Court stated that the following issues, when raised by a decision-maker on appeal, do not constitute new issues: jurisdictional issues; whether a given error requires a remedy and what the appropriate remedy is; and, the standard of review. However, to date, there have been no cases where it was argued the RAD raised a new issue by deciding on a jurisdictional issue, remedies, or the standard of review in the absence of submissions from the parties.

Return to note 23 referrer

In Kwakwa v. Canada (Minister of Citizenship and Immigration), 2016 FC 600, paragraphs 26–30 (CanLII), the person alleged they were a citizen of the Democratic Republic of the Congo, but the RPD concluded they were a citizen of Angola. The RPD dismissed their claim, as they had no fear in Angola. In making its decision, the RPD did not reach a firm conclusion on the authenticity of the person’s Congolese identity documents. On appeal, the RAD conducted a detailed assessment of the Congolese identity documents and concluded they were not reliable and confirmed the RPD’s decision. The Court found the RAD raised new credibility issues on appeal and breached procedural fairness by identifying additional arguments and reasoning regarding the person’s Congolese identity documents. Although the person understood the main issue before the RAD was their identity and the alleged use of fraudulent documents, it could not be said the person knew the case they had to meet, or had an opportunity to respond to the RAD’s concerns. The RAD’s concerns were not so central to the RPD decision or to the appeal arguments that it could be assumed the person was aware of the RAD’s concerns.

In Isapourkhoramdehi v. Canada (Minister of Citizenship and Immigration), 2018 FC 819, paragraphs 12–22 (CanLII),the RPD made numerous detailed negative credibility findings, but the RAD did not analyse those credibility findings which the RPD considered to be determinative. Instead, the RAD restricted its review to two findings, the person’s failure to be baptized and the alleged discrepancy between a supporting letter and the person’s testimony, which were not the basis of the RPD’s negative credibility findings. Therefore, the Court held although the person was certainly aware that their credibility was at issue, they did not address these points considered by the RAD, as such, in their submissions on appeal. This constituted new grounds or reasoning which the RAD raised and relied on in making its decision, without affording the person an opportunity to respond and this breached the duty of fairness.

In Bouchra v. Canada (Minister of Citizenship and Immigration), 2020 FC 1063, paragraphs 32–41 (CanLII) the RPD’s decision focused almost exclusively on the summons, which the RAD found to be flawed (based in part on specialized knowledge that was not explained or justified). The RAD considered additional inconsistencies with respect to the summonses, the testimony provided, and testimony about activities with an association being vague and repetitive. The Court held when the RAD’s decision is juxtaposed against that of the RPD, it appeared that the RAD essentially reached its decision based on a new issue that was not the subject of the appeal.

Return to note 24 referrer

In Laag v. Canada (Minister of Citizenship and Immigration), 2019 FC 890, paragraphs 22—23 (CanLII), the RPD found the person failed to establish their identity. The RPD observed that the witness' information “could easily have been memorized in preparation for the hearing” but found the person and their witness’ testimonies were overall consistent with few discrepancies. On appeal, the RAD made negative credibility findings about the witness’ evidence which were not made by the RPD and were distinct from those that formed the basis for the RPD’s decision. The Federal Court stated the RAD should have provided notice of its credibility concerns to the person for a response.

Return to note 25 referrer

In Ehondor v. Canada (Minister of Citizenship and Immigration), 2016 FC 1253, paragraphs 15–18 (CanLII), the RPD generally accepted the person’s testimony and evidence as credible (except with respect to whether Abuja was a viable IFA). The RAD’s finding that the person was “not credible” went further and the person’s general credibility was not raised on appeal. The Federal Court found such general credibility findings without giving the person an opportunity to respond is a breach of procedural fairness. The Court further reasoned that notice was required because the general credibility finding could taint or impugn the person’s credibility in some future proceeding or application.

Return to note 26 referrer

In Mei Ling He v. Canada (Minister of Citizenship and Immigration), 2019 FC 1316, paragraphs 5, 17—23, 65—81 (CanLII), the RPD did not raise any issue with the genuineness of the person’s supporting documents but assigned them little weight. However, on appeal the person argued at the RAD that the RPD erred in the weight afforded their documents. In addressing this argument, the RAD found some of the person’s supporting documents were not genuine. The Federal Court found the RAD breached procedural fairness by making several new credibility assessments in addressing the genuineness of the supporting documents. The Court reasoned that the RAD was procedurally unfair to the person and it could not be assumed they knew the case to be met on appeal even though they raised the issue concerning the weight the RPD gave their documents. The Court further stated that there was a difference between the amount of weight attributed to the supporting documents and the introduction of a determinative, entirely new and much more extensive analysis of those documents.

In Ortiz v. Canada (Minister of Citizenship and Immigration), 2016 FC 180, paragraphs 21—22 (CanLII), the RPD found credibility was determinative. Based on its credibility findings, the RPD gave little to no weight to the person’s medical and police reports, but the authenticity of the person’s police report was not discussed by the RPD nor put to him at the RPD. On appeal, the RAD questioned the genuineness of the police report by comparing it with the sample in the documentary evidence. The Federal Court found the RAD raised a new issue and breached procedural fairness on a matter “unknown” to them.

In Onwuanagbule v. Canada (Minister of Citizenship and Immigration), 2020 FC 550, paragraphs 9—14 (CanLII), the RPD doubted the genuineness of the person’s affidavits on the basis that, in Nigeria, providing written evidence about an individual’s sexual orientation could put that person, and the deponents themselves, in danger and that affidavits are frequently forged. On appeal, the person argued the RPD erred in discounting the affidavits based on the country condition evidence. However, in its decision the RAD gave the affidavits no weight for a completely different reason, which was they provided no first-hand knowledge about the person’s claim and said it did not have to review the country condition evidence on which the RPD had relied because the affidavits merited no weight in any case. The Federal Court found this was unfair as the person had not made submissions on the issues that troubled the RAD and that resulted, in part, in the dismissal of the appeal.

Return to note 27 referrer

In Shoyebo v. Canada (Citizenship and Immigration), 2022 FC 1264, paragraphs 27—33 (CanLII), the RPD found the person generally not credible and their claim lacking in evidence as to their youngest daughter. The RAD largely agreed with this conclusion. However, the Court found that the RAD raised a new issue in making a negative credibility finding about the person's political affiliation based on information in the NDP. The RPD did not consider there were inconsistencies in the person's testimony in comparison to the NDP. The Court stated for the RAD to do so on appeal without providing notice and the opportunity to respond was procedurally unfair.

Return to note 28 referrer

In Adam v. Canada (Minister of Citizenship and Immigration), 2017 FC 360, paragraphs 9—14 (CanLII), the RPD found the person was not credible that they were targeted by Al-Shabab in Somalia. In coming to this conclusion, the RPD did not question or consider whether the person was Sufi, but noted in its decision that there was no evidence they were targeted by Al-Shabab because of their religion. The Federal Court interpreted this to mean that the RPD accepted the person’s Sufi identity. On appeal to the RAD, the person argued they faced a prospective risk as a Sufi. The RAD found the person was not Sufi because they produced no corroborating documents and because they did not describe themselves as Sufi in their interviews with the United States’ authorities. The Court held the person’s identity as a Sufi was a new issue and the RAD should have given notice. There was no reason why the person would expect the RAD to question their Sufi identity, since their ground of appeal was predicated on their profile as a Sufi and they argued the RPD failed to assess their future risk of persecution.

Return to note 29 referrer

In Ojarikre v. Canada (Minister of Citizenship and Immigration), 2015 FC 896, paragraphs 20—23 (CanLII), the RPD fully canvassed the issue of IFA at the hearing but made no findings on it in its decision. Instead, the RPD rejected the refugee claim on the issue of credibility. The issue of IFA was not the subject matter of appeal to the RAD, but the RAD dismissed the appeal on the basis that the person had an IFA. The RAD based its assessment on the person’s submissions on IFA to the RPD, even though it was not raised on appeal. The RAD stated it could consider the issue of IFA because it was canvassed at the RPD and it was not relying on any of the RPD’s credibility findings for the purposes of the IFA finding, since the RAD was assuming the person was credible in their allegations. The Court held this was a breach of procedural fairness because the person could not make submissions on an issue they were not aware of and they would only learn about it upon receipt of the RAD’s decision. If the RAD wished to consider the IFA issue, it was incumbent upon it to advise the parties of its intention to do so and to provide them an opportunity to submit new evidence and submissions on the issue.

In Manzoor-Ul-Haq v. Canada (Minister of Citizenship and Immigration), 2020 FC 1077, paragraphs 13—19, 23—26 (CanLII), the RPD raised six IFA locations for consideration at the hearing. However, in its decision the RPD only made determinations with respect to two of the locations. On appeal, the person did not raise any arguments with respect to the four IFA locations for which the RPD made no determinations, but argued on appeal they should be given notice if the RAD considers any other IFA locations. In its decision, the RAD considered the two IFA locations in the RPD its decision, as well as the four locations for which the RPD made no determination. The RAD rejected the person’s submission requesting notice of the additional IFA locations under consideration, finding it did not need to give notice because the person was aware of the potential IFA locations under consideration and the person was provided with two opportunities to give additional submissions and new evidence. The Federal Court found the RAD breached procedural fairness, finding the RAD was obliged to give the person notice that it was making an IFA determination related to locations that the RPD found were not viable.

See also, Ipaye v. Canada (Minister of Citizenship and Immigration), 2019 FC 1338, paragraphs 14—18 (CanLII), Cardenas v. Canada (Minister of Citizenship and Immigration), 2017 FC 1194, paragraph 3 (CanLII), and Boluwaji v. Canada (Minister of Citizenship and Immigration), 2018 FC 1154, paragraphs 18—20 (CanLII), where the Federal Court considered that the RAD raising IFA on appeal was a new issue, but any concerns regarding procedural fairness were addressed by the RAD giving the person notice and an opportunity to make submissions on IFA.

Return to note 30 referrer

In Xu v. Canada (Minister of Citizenship and Immigration), 2019 FC 639, paragraphs 47—53 (CanLII), the Federal Court found that the RAD’s finding on state protection was a truly new issue. It had not been identified as a material issue before the RPD at the hearing and the RPD did not make any determinations on state protection in its reasons for decision. As a result, the issue of state protection did not reasonably stem from the issues on the appeal as identified by the person and they could not have known that it would be raised and determined by the RAD. The Court allowed the judicial review finding that an opportunity to respond was owed to the person.

Return to note 31 referrer

In Henry v. Canada (Minister of Citizenship and Immigration), 2020 FC 1187, paragraphs 3, 6–9 (CanLII), the person claimed refugee protection in Nigeria for fear of persecution by reason of their conversion to Christianity. The RPD rejected the claim concluding that the person was not credible and that they had not established they were Christian. On appeal, the RAD found that the RPD made several errors in its credibility assessment, but confirmed that the person lacked credibility and did not meet their burden of establishing that they subjectively feared persecution and their fear was well-founded in an objective sense. Unlike the RPD, the RAD recognized the person’s Christian religion and undertook an analysis of the specific country conditions in assessing whether the person’s fear was well-founded in an objective sense. The Federal Court found the RAD made a new determination on the merits of the case and breached procedural fairness by failing to give the person notice and an opportunity to respond. The Court found it was a new issue because the RPD did not rely on this point at all and expressly stated it was disregarding whether their fear was objectively well-founded because the person failed to establish they were Christian. It was obvious that the person’s submissions to the RAD would not have addressed this issue, especially considering the many errors raised with respect to the RPD’s credibility assessment.

Return to note 32 referrer

In Herrera Salas v. Canada (Minister of Citizenship and Immigration), 2021 FC 1363, paragraphs 19—25 (CanLII), a Mexican family sought refugee protection based on threats received because of the husband’s employment with a political party during the 2018 federal election campaign. The RPD rejected the claims after finding the husband not credible. The RAD accepted the husband’s credibility, but instead confirmed the rejection of the claims on the basis that since the husband had ended their political involvement and the party they worked for did not win the 2018 elections, the agents of persecution would have no incentive to continue targeting the family. On judicial review, the family argued the RAD’s analysis of prospective risk constituted a new issue. The Federal Court agreed and found that the RAD raised a new issue of prospective risk and breached procedural fairness in failing to provide notice. The Court specifically rejected the Minister’s argument relying on Baez De La Cruz v. Canada (Minister of Citizenship and Immigration), 2021 FC 457 (CanLII), discussed below, that prospective risk was not a new issue because it is an inherent step in any refugee claim, so it is a central element of the claim the RAD was required to analyze in light of the evidence already before the RPD. The Court found that while prospective risk is an inherent step in any refugee protection claim, it constitutes a new issue if the RPD did not raise it, much less assess it.

In Gonzalez Jimenez v. Canada (Citizenship and Immigration), 2022 FC 479, paragraphs 14—20 (CanLII), the Federal Court found the RAD breached procedural fairness by rejecting the appeal based on the new issue of prospective risk. The Court held that although the person argued in their memorandum on appeal that the RPD’s decision was unfounded with respect to their risk in Colombia, those arguments were not a new ground of appeal based on prospective risk. Rather, they were in relation to the RPD’s determinative state protection finding and the RAD should have given the person an opportunity to provide submissions on the issue of prospective risk.

See also, Aghedo v. Canada (Citizenship and Immigration), 2021 FC 450, paragraphs 19, 21—22 (CanLII).

Return to note 33 referrer

In Canada (Minister of Citizenship and Immigration) v. Alazar, 2021 FC 637, paragraph 85 (CanLII), the RPD rejected the persons’ refugee claims because they failed to establish their identity. The merits of their claims were not addressed in any way at the RPD. On appeal, the RAD found the RPD erred in its identity assessment, found their identity was established and substituted its own determination that the persons were Convention refugees based on their sur place claims. The Court found that the RAD’s decision on the sur place claim constituted a new issue as it was legally and factually distinct from the grounds of appeal related to the threshold issue of identity and from the new evidence tendered by the persons. Further, the Court held that as the sur place finding could not reasonably be said to stem from the issues framed by the persons, the Minister would have been taken by surprise that the appeal was decided on this ground. Therefore, the Minister deserved notice of the new issue despite not being a party in the appeal. Although the claims involved a sur place claim, and they requested alternative relief that the RAD determine their claims in their favour, which presumably included their sur place claim, the sur place claims were not, and could not be, part of the grounds of appeal as framed by the persons.

Although the Federal Court does not refer to new issues and a breach of procedural fairness, see Jianzhu v. Canada (Minister of Citizenship and Immigration), 2015 FC 551, paragraphs 7 and 12 (CanLII), which is discussed above. In Jianzhu, the RPD made no findings on the person’s sur place claim when it rejected the claim based on a lack of credibility. Since it was not in the RPD decision, the person did not raise the sur place issue on appeal to the RAD. However, the RAD independently evaluated the sur place claim after examining the record and relying on the RPD’s credibility findings to find that the person did not have a sur place claim. The Federal Court found the RAD erred in considering the sur place issue.

Return to note 34 referrer

In Milfort-Laguere v. Canada (Minister of Citizenship and Immigration), 2019 FC 1361, paragraphs 26—37 (CanLII), the Minister intervened at the RPD and presented evidence that the person was excluded pursuant to Article 1E. However, the RPD found it could not conclude prima facie that the person had taken the necessary measures to obtain the permanent resident status they were granted by the Government of Brazil and therefore they were not referred to in Article 1E. Instead, the RPD rejected the claim based on a lack of credibility. On appeal, the RAD raised the issue of the application of Article 1E exclusion and the reversed burden of proof and gave the person an opportunity to make submissions and provide supporting evidence. At the Federal Court, the person argued that the RAD acted unreasonably in deciding on its own initiative, to quash the RPD decision, even though this part of the RPD decision, concerning the applicability of the exclusion clause, was not part of the grounds for appeal. The Court disagreed finding that the RAD is not limited to considering only the grounds for the appeal before it. Rather, it has a duty to assess the entire record before the RPD and to intervene if it finds that the latter erred. The Court concluded that the person had an opportunity to respond to the RAD’s concerns, in full knowledge that the burden of proof concerning the person’s status in Brazil had been reversed.

Return to note 35 referrer

In Homauoni v. Canada (Minister of Citizenship and Immigration), 2021 FC 1403, paragraphs 10, 22—33 (CanLII), the Federal Court found the RAD raised a new issue and should have given the person notice prior to finding that a psychological report submitted as new evidence was not admissible due to a lack of credibility. Specifically, the RAD took issue with the authors of the report administering the Beck Depression Inventory II and the Beck Anxiety Inventory, as they are “self-reporting tests”. As such, the Court found that by calling the credibility of the report into question based on the actions of the report’s authors, as opposed to that of the person, the RAD clearly went beyond the issue in the appeal, namely whether the person suffered from cognitive impairment at the time of the RPD hearing which may have affected their testimony. The Court concluded that by failing to provide the person with an opportunity to address the RAD’s concerns about the report authors’ professionalism, before dismissing the report as not credible, the RAD breached procedural fairness.

See also, Abdalla v. Canada (Citizenship and Immigration), 2022 FC 812, paragraphs 10, 17—20 (CanLII), where the Federal Court found that the RAD provided no support for its conclusion that the person’s police and medical reports submitted as new evidence were not authentic because they were handwritten. The RAD did not explain why the official stamps, letterheads or signatures on the documents were not authentic, nor did the RAD give the person an opportunity to address this matter.

Return to note 36 referrer

In Sary v. Canada (Minister of Citizenship and Immigration), 2016 FC 178, paragraph 31 (CanLII), credibility was the determinative issue for the RPD. On appeal the RAD upheld the negative credibility determination but pointed out the contradiction between the person’s visa application and their testimony about how they found their job in Canada, which was a finding not made by the RPD. On judicial review, the person argued the RAD breached procedural fairness by adding a new reason in the assessment of their lack of credibility. The Court disagreed with the person and found the RAD simply referred to another piece of evidence in the tribunal’s file which supported the RPD’s finding that the person lacked credibility.

In Antunano Martinez v. Canada (Minister of Citizenship and Immigration), 2019 FC 744, paragraphs 15–20 (CanLII), the Federal Court found the RAD did not breach procedural fairness by making additional credibility findings. This was because credibility was at the heart of the RPD’s concerns and the RAD did not err in making an independent analysis of this issue. Second, the Court held that the RAD’s analysis of the credibility issue was focused on facts already addressed by the RPD. Even though the RAD rejected some of the RPD’s credibility findings, the facts pointed out by the RAD to support its negative credibility finding were initially raised by the RPD in its decision. The Court held, this was not a case where the RAD based its decision on a very specific point of their credibility, nor decided the case on a new issue that had not been dealt with by the RPD and was not subject of the appeal.

In Guo v. Canada (Minister of Citizenship and Immigration), 2020 FC 577, paragraphs 44–53 (CanLII), it was not a new issue for the RAD to consider the genuineness of the person’s passport and the plausibility of the person’s exit from China using a smuggler. The Federal Court held the RAD simply made a fresh application of existing evidence as part of the fulfilment of its statutory duty when sitting in appeal from a decision made by the RPD.

In Ibrahim v. Canada (Minister of Citizenship and Immigration), 2016 FC 380, paragraphs 26–30 (CanLII), the RAD in making its own credibility findings relied on an exchange between the RPD Member and the person at the hearing regarding the timing of events, which the RAD found to be too fortuitous to be believed. Even though the RPD did not make such a finding in its decision, the Court found this was not a new issue because the RAD’s finding addressed the very issue raised by the person – the finding that they were not credible in regarding their conversion, their arranged marriage, and their fear.

In Emac Sonkoue v. Canada (Minister of Citizenship and Immigration), 2018 FC 1173, paragraphs 18—20 (CanLII), the RAD made four additional credibility findings, which were not findings made by the RPD. The Federal Court upheld the RAD’s decision and found these additional credibility findings were not a new issue because they were based on evidence in the record, the RAD did not ignore contradictory evidence on the record, and credibility was clearly an issue before the RPD.

In Nuriddinova v. Canada (Minister of Citizenship and Immigration), 2019 FC 1093, paragraph 48 (CanLII), the Federal Court found that the person’s broad argument that their testimony was “consistent, uncontradicted, plausible and corroborated” on appeal invited the RAD to consider the credibility of their testimony and the overall record. However, the Court cautioned that that the issue of credibility is broad and the RAD cannot have carte blanche to identify any new credibility issue, but in this case the credibility of the person’s testimony was raised by the person themselves.

Return to note 37 referrer

In Poudel v. Canada (Minister of Citizenship and Immigration), 2021 FC 1046, paragraphs 20—22 (CanLII), the RPD found the person was not credible. In doing so, the RPD undertook no analysis of the individual documents but found they were insufficient to establish the truth of the person’s central allegations. On appeal, the person argued the RPD erred by summarily dismissing their corroborative documents. The RAD agreed and assessed each document and provided reasons for its conclusions as to no weight or little weight. Upon judicial review the person argued the RAD breached procedural fairness and they should have been provided with an opportunity to address the concerns raised in its detailed analysis, which was entirely new, and they could not have anticipated the RAD conducting an entirely fresh analysis and raise new credibility findings. The Court disagreed and found the RAD did not raise a new issue because the person was on notice that their credibility was at issue and there were concerns regarding their documentary evidence, as well the person could not claim to be taken by surprise when the RAD assessed the documents, which they complained were missing from the RPD’s decision. Similarly, it is not a new issue for the RAD to raise additional factual concerns with respect to the genuineness of a document when the issue of its genuineness was specifically raised in the person’s written submissions to the RAD.

In Zhang v. Canada (Minister of Citizenship and Immigration), 2019 FC 870, paragraphs 11–15 (CanLII), the Federal Court held that the RAD can come to a more definitive conclusion on whether a document is fraudulent when conducting an independent assessment of the same evidence the RPD considered in finding the documents did not establish the purpose for which they were issued.

Return to note 38 referrer

In Osorio Malave v. Canada (Minister of Citizenship and Immigration), 2021 FC 785, paragraphs 2, 8—16 (CanLII), the determinative issue at the RPD and the RAD was whether the person had rebutted the presumption of state protection. On judicial review, the person argued the RAD’s findings that the person failed to rebut the presumption of state protection involved several novel credibility findings, for which they should have received notice. The Federal Court found the RAD did not make new or novel negative credibility findings and there was no breach of procedural fairness. Rather, the RAD’s findings related to whether the person provided sufficient evidence to rebut the presumption of state protection. The RAD’s references to an absence of credible evidence in its decision had to be read in the context of the decision. The Court explained: “[c]redibility findings generally involve a decision-maker pointing to contradictions and inconsistencies in the evidence and often involve a questioning, expressed or implied, of the sincerity of a statement or belief. Where a finding does not rest on contradictions and inconsistencies, but instead a failure of the evidence, even if believed, to establish the conclusion for which it has been tendered, the finding relates to the evidence’s sufficiency, not credibility.”

In Smith v. Canada (Minister of Citizenship and Immigration), 2019 FC 1472, paragraphs 24—32 (CanLII), the person argued on judicial review that the RAD made four “disguised” negative credibility findings, which were new issues, and they should have been given notice. However, the Federal Court rejected this submission finding the four issues raised by the person are findings related to whether they provided sufficient evidence to establish a nexus to a Convention ground and/or their alleged personalized risk. In the Court’s view, the RAD did not doubt the credibility of the person’s mother’s belief that their family was a target of threats or that their ex-partner’s brother was not a gang member. Instead, the RAD doubted whether those beliefs reflected reality and the RAD had no duty to disclose those issues. The RAD was assessing issues of corroboration and consistency, which at times is a major if not the major part of the RAD’s responsibility.

Return to note 39 referrer

In Tan v. Canada (Minister of Citizenship and Immigration), 2016 FC 876, paragraph 49 (CanLII), the RPD accepted the person’s claim for refugee protection. The Minister appealed the RPD’s decision to the RAD and the RAD allowed the appeal and found the person was not a Convention refugee because there was adequate state protection in their country of nationality. On judicial review, the person argued that the RAD’s factual conclusions relied upon in support of its decision on the issue of state protection were not put to them and were new issues. The Federal Court held that the RAD’s findings did not raise a new issue and were related to the issue of state protection that was already raised in the RPD decision. The Court stated that the RAD simply came to a different conclusion than the RPD based on its independent assessment of the evidence, which included referring to documentary evidence in the RPD record.

Return to note 40 referrer

In Cardenas v. Canada (Minister of Citizenship and Immigration), 2017 FC 1194, paragraphs 14–15 (CanLII), the RPD rejected the claim on the grounds of credibility without deciding whether there was a nexus. On appeal, the RAD gave notice of the new issue of IFA and confirmed the RPD’s decision on this basis. In confirming the dismissal of the claim based on IFA, the RAD found there was no nexus. On judicial review, the persons argued the RAD’s finding that there was no nexus was a new issue and they should have been given an opportunity to make submissions on this issue. The Federal Court rejected the argument, finding that every claim for protection raises both the possibility of protection as a refugee on Convention grounds, and the possibility of surrogate protection under section 97. The issue of which, if either provision, applies to a person is always an issue before the RPD and the RAD.

Return to note 41 referrer

In Iqbal v. Canada (Minister of Citizenship and Immigration), 2020 FC 170, paragraphs 35—38 (CanLII), the person was a Pakistan citizen, and they feared their abusive spouse, who was a Bangladesh citizen. The RPD found the person had a viable IFA in Pakistan. The RAD found the RPD erred in the way it assessed the viability of an IFA in Pakistan, stating that to determine that a viable IFA exists, one must first determine that there is a well-founded fear of persecution in the country where the IFA is located. As there was no evidence of the person’s fear in Pakistan (only in Bangladesh), the RAD found that an IFA assessment was not applicable to the facts of this case. Instead, the RAD upheld the RPD’s decision based on the RAD’s own finding that the person had not articulated a well-founded fear of persecution in Pakistan based on the person’s admission that their abusive spouse could not harm them in Pakistan, their spouse’s lack of connection to Pakistan, and the lack of communication between the person and their spouse. On judicial review, the person argued the RAD raised a new issue by deciding the appeal based on their well-founded fear in Pakistan. The Federal Court dismissed the judicial review and found it was unclear whether the RAD raised a new issue, as the RAD simply reiterated the RPD’s reasoning regarding the risk of persecution in Pakistan, which relates to the first prong of the two-prong IFA test. Furthermore, the person did not challenge the RPD’s first prong analysis on appeal.

Return to note 42 referrer

In Henry v. Canada (Minister of Citizenship and Immigration), 2020 FC 1187, paragraphs 3, 6—9 (CanLII), the person claimed refugee protection due to a fear of persecution by reason of their conversion to Christianity. The RPD rejected the claim concluding that the person was not credible and that they did not establish they were Christian. On appeal, the RAD found that the RPD made several errors in its credibility assessment but confirmed that the person lacked credibility and did not meet their burden of establishing they subjectively feared persecution and that their fear was well-founded in an objective sense. On judicial review, the person argued the RAD ought to have given them an opportunity to respond to the RAD’s two determinative findings that there was no subjective fear and objective fear of persecution, which were not addressed by the RPD. With respect to the RAD’s finding that the person did not meet their burden of establishing they subjectively feared persecution, the Federal Court found this was not procedurally unfair. The Court noted the RAD relied on the record before it, notably the narrative and the RPD’s decision. Furthermore, the person was aware that on appeal, the determinative issue was their credibility and, in the alternative, their claim for refugee protection—that is, the existence of a subjective fear of persecution.

See also, Caleb v. Canada (Minister of Citizenship and Immigration), 2018 FC 384, paragraphs 20—24 (CanLII), where the RAD’s subjective fear findings were in response to the issue raised in the appeal regarding the RPD’s subjective fear findings and were based upon the RPD’s mistaken belief that the person’s children had accompanied them to the U.K. and Canada.

Return to note 43 referrer

In Baez De La Cruz v. Canada (Minister of Citizenship and Immigration), 2021 FC 457, paragraphs 6—12 (CanLII), the RPD rejected the claim on credibility. Moreover, the RPD found that no one had returned to the person’s mother’s home or other family members’ homes to try to find him after 2010, and the person had not established that he was currently being sought by the agent of persecution and their associates. On appeal, the RAD agreed with the RPD’s credibility findings, but also determined that even if it believed the person, it would still conclude that they did not establish a prospective risk. On judicial review, the person argued that the RAD raised a new issue of prospective risk since the sole issue before the RPD was credibility and they did not address the issue of prospective risk in their written submissions to the RAD. The Court disagreed, finding this is not a new issue because the existence of a prospective risk is always central to the right to protection under section 97 and it was clear from the RPD’s decision, read in light of the whole decision, that the RPD also had in mind the absence of a prospective risk and that it ruled on this issue, if not explicitly, then at least implicitly.

In Musthaffa v. Canada (Citizenship and Immigration), 2022 FC 59, paragraphs 31—32 (CanLII), the RPD rejected the claim based on a lack of credibility and lack of subjective fear. On appeal, the RAD rejected the appeal because there was no forward-looking risk. The Federal Court found that the RAD did not breach procedural fairness by deciding on a new issue of forward-looking risk because the forward-looking nature of the risk allegedly faced by the person was an inherent or implicit component of the RPD’s and the RAD’s analyses. The Court noted that the person’s express position on the appeal was that they faced a “personal risk” in returning to their country of nationality and they invited the RAD to look at all the evidence before the RPD and declare him to be a person in need of protection.

In Etienne v. Canada (Minister of Citizenship and Immigration), 2019 FC 1461, paragraphs 7, 12—15 (CanLII), the RPD rejected the claim for lack of credibility. The RAD did not consider the person’s credibility and dismissed the appeal for different reasons, that there was no risk to the person should they return to Haiti. The RAD found it could decide the matter based on the evidence because even if the person’s narrative was accepted as true, it was not enough to establish, on a balance of probabilities, that the person faced a risk if they were to return to Haiti. On judicial review, the person argued the RAD based its decision on a new set of arguments and breached procedural fairness by not giving them an opportunity to respond. The Federal Court rejected the person’s argument and found no notice was required because the person’s own argument to the RAD was that the RPD “committed an unreasonable error in law in finding that there was insufficient evidence with which to establish, on a balance of probabilities, that the [person] risks being persecuted”. By raising the argument themselves, the RAD was permitted to assess whether the person established a risk upon return to Haiti.

Return to note 44 referrer

In Uddin v. Canada (Immigration and Citizenship), 2022 FC 117, paragraphs 14 and 16 (CanLII), the Federal Court rejected the person’s argument that the RAD should have held an oral hearing or, alternatively, provided them with notice of the credibility concerns it had of the new evidence submitted on appeal before finding the new evidence was inadmissible because it lacked credibility. The Court stated the credibility assessment of the new evidence is a prerequisite to admitting the new evidence, and therefore, “[m]aking this assessment, which is required in every case, does not trigger a duty to give notice.” In fact, “[e]ven where the new evidence is tendered to overcome the RPD’s negative conclusions regarding the [person’s] overall credibility, the RAD does not raise a ‘new issue’ merely by finding the new evidence not credible.”

In Marquez Obando v. Canada (Citizenship and Immigration), 2022 FC 441, paragraphs 15, 26—28 (CanLII), the Court further noted that the RAD has the discretion to ask for written submissions on new evidence should it have questions on it, but it was not obliged to give the person another occasion, over and above RAD Rule 3(3)(g)(iii), to answer questions on the document’s credibility.

Return to note 45 referrer

In Zhao v. Canada (Minister of Citizenship and Immigration), 2019 FC 1593, paragraphs 27—31 (CanLII), the persons argued on judicial review that the RAD’s consideration of the change in country conditions in China constituted a new issue. The Federal Court disagreed and found it was not a new issue. The Court noted that the persons raised the two-child policy in their letter to the RAD and the RAD previously sought submissions from them on the two-child policy and the new information in the NDP. The Court also disagreed it was a new issue because their claim was based on their fear of forcible sterilization or abortion through the enforcement of China’s family planning policies, it had always been a central matter to their claim, which the RAD had a duty to consider. As a matter of procedural fairness, the RAD simply had a duty to disclose the most recent NDP and to give them an opportunity to respond and make submissions on this matter. This is exactly what the RAD did in this case.

Return to note 46 referrer

In Feng v. Canada (Minister of Citizenship and Immigration), 2019 FC 18 (CanLII), the Federal Court held that it was not a new issue for the RAD to rely on a new Jurisprudential Guide (JG) in its decision, even though the JG was released after the perfection of the appeal. The Court explained that the issues raised and addressed in the JG were not new or unknown to the person, as the person’s ability to exit China while being sought by the PSB was addressed by the RPD and an issue on appeal. Furthermore, the Court found the RAD did not act on its own initiative in considering the JG as it was implementing the IRB’s stated policy of addressing jurisprudential guidance in furthering the objective of promoting consistency in the treatment of similar cases before the IRB.

With respect to jurisprudence generally, see Yeshi v. Canada (Minister of Citizenship and Immigration), 2016 FC 1153, paragraphs 39—43 (CanLII). In Yeshi, the Federal Court found it was not a new issue for the RAD to refer to a recently decided Federal Court case (Tashi), which was issued after the perfection of the person’s appeal, when considering the application of the Williams test and whether the person had access to Indian citizenship. The Court held that it was not a new issue. This is because the issue of whether access to Indian citizenship was within their control was the same issue before the RPD, the person argued that the line of jurisprudence in Tretsetsang should not be followed and Tashi reflected one line of jurisprudence on the central issue, all of which the person was aware. However, the Federal Court stated at paragraph 43 that it may have been a good practice to bring the Tashi decision to the attention of the person and to invite submissions, considering the evolving jurisprudence.

Return to note 47 referrer

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