Deri v. Canada (Citizenship and Immigration)

Deri v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2015-09-02
Neutral citation
2015 FC 1042
File numbers
IMM-7050-14
Notes
A correction was made on Febuary 1, 2016
Reported Decision
Decision Content
Date: 20150902
Docket: IMM-7050-14
Citation: 2015 FC 1042
Ottawa, Ontario, September 2, 2015
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
SAMUEL DERI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision of the Refugee Appeal Division of the Immigration and Refugee Board of Canada (RAD), dated September 17, 2014, in which the RAD confirmed the finding of the Refugee Protection Division (RPD) that the Applicant is neither a Convention Refugee nor a person in need of protection pursuant to s 96 or s 97, respectively, of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
Background [2] The Applicant is a citizen of Ghana. In September 2013, he fled to Canada and made a claim for refugee status. In his initial Basis of Claim (BOC) narrative he claimed that his father’s relatives threatened him with death after he declared that he would not accept the Chieftaincy of the Dagari tribe. On October 18, 2013, he submitted an addendum to his BOC narrative in which he explained that he is bisexual and that he worried that his sexual orientation would be discovered by his community in Ghana. In November 2013, the Applicant learned he was HIV positive and, at his first sitting of his hearing before the RPD on December 6, 2013, provided a physician’s letter confirming this. Prior to the second sitting of his hearing on January 16, 2014, the Applicant submitted a second addendum to his BOC narrative in which he explained that he feared persecution upon return to Ghana as a result of his HIV positive status because, after disclosing his status to his wife who is in Ghana, he had received death threats from her family.
[3] At the second sitting of his hearing, the Applicant explained to the RPD that he is actually a homosexual, and that he learned he had contracted HIV from his male partner, with whom he had been in a relationship for several years. In support of the Applicant’s claim of persecution based on his HIV status, his counsel submitted three articles about the stigma faced by Ghanaians who are HIV positive. On May 9, 2014, the RPD rendered its negative decision finding the Applicant to be neither a Convention refugee nor a person in need of protection.
[4] On appeal to the RAD, the Applicant focused his submissions on the risk of persecution he would face in Ghana as a result of his HIV positive status. His new counsel submitted a request to the RAD to consider four articles about stigma and HIV status in Ghana based on the Applicant’s view that there had been a lack of evidence before the RPD on this issue. His new counsel also made detailed submissions about why the RAD should accept the new evidence, pursuant to s 110(4) of the IRPA.
[5] The RAD refused to accept the new evidence finding that it did not meet the requirements of s 110(4). It rendered its negative decision on September 17, 2014 confirming the RPD’s decision.
The RPD’s Decision [6] The determinative issues before the RPD were the Applicant’s credibility, the well-foundedness of his fear of persecution, and the issue of discrimination versus persecution.
[7] On the issue of credibility, the RPD concluded that the Applicant did not provide credible evidence regarding his fear of persecution as a result of his refusal to accept the Chieftaincy. The RPD further found that the Applicant’s evidence was contrary to the objective documentary evidence which stated that a Chieftancy is not forced on anyone who does not aspire to take the position.
[8] With regard to the Applicant’s HIV positive status, the RPD accepted that the Applicant is a member of a particular social group, and that people with his status in Ghana “suffer a certain degree of social stigma”. However, based on the documentary evidence, the RPD concluded that while the Applicant may be subject to discrimination upon return to Ghana, that discrimination was not sufficiently persistent and punitive so as to amount to persecution under the IRPA.
[9] Finally, the RPD considered the Applicant’s claim that he also fears persecution as a result of his status as a homosexual man, and found the Applicant’s evidence on this issue not to be credible for a number of reasons, including the fact that he omitted this information from his initial BOC narrative. While the Applicant provided evidence of his email communications with his male partner in Ghana, the RPD found it implausible that this evidence did not include communications about the Applicant’s HIV positive status, especially since the Applicant testified that he had disclosed his status to his partner.
[10] The RPD also found that the Applicant was not credible overall and, for all these reasons, the Applicant’s claim was rejected.
Decision Under Review – RAD Decision [11] On appeal, the RAD first considered the admissibility of the new evidence pursuant to s 110(4) of the IRPA, which evidence was comprised of four articles concerning HIV related stigma and discrimination. The RAD found that the new evidence did not arise after the rejection of the Applicant’s claim, as each article was produced before the Applicant’s final sitting before the RPD on January 16, 2014, and after he discovered that he is HIV positive. In his affidavit before the RAD, the Applicant stated that he did not “know that [he] was supposed to gather this evidence as part of [his] RPD hearing” and that he “did not know why [his] counsel did not gather more of it”. However, the RAD rejected this explanation, noting that the Applicant was represented by experienced counsel who submitted some evidence regarding the treatment of HIV positive individuals in Ghana and made extensive submissions on the risks that the Applicant would face as an HIV positive person should he return to Ghana. Furthermore, the Applicant did not provide any evidence to suggest that his former counsel was incompetent in not disclosing further documentary evidence.
[12] In addition, the RAD found that the Applicant did not provide sufficient evidence to prove that the new evidence was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented the new evidence at the time of the rejection of his claim by the RPD.
[13] Therefore, the RAD concluded that:
[18] The RAD finds that it is bound by s 110(4) of the IRPA, and is not bound by jurisprudence which related to the admissibility of new evidence in Pre-Removal Risk Assessment (PRRA) applications, and therefore the RAD does not have discretion to accept evidence that is not covered by s 110(4).
[14] Relying on this Court’s decision in Huruglica v Canada (Citizenship and Immigration), 2014 FC 799 [Huruglica], the RAD noted that its task was to conduct an independent assessment of the Applicant’s claim by reviewing the totality of the evidence which was presented at the time of the rejection. As such, the RAD refused to engage in its own independent research, which was suggested by the Applicant’s new counsel in his submissions, and instead limited its analysis to the evidence that was before the RPD at the time of the rejection. Finally, the RAD noted that it would not consider any of counsel’s submissions that related to the new evidence, or any evidence that was not before the RPD, such as the most recent versions of the Immigration and Refugee Board of Canada’s National Documentation Package (NDP), including the most recent United States Department of State report (US DOS Report).
[15] Turning to the RPD’s decision, the RAD first conducted an independent assessment of the RPD’s credibility findings, despite the fact that the Applicant did not challenge any of these findings on appeal. After reviewing the evidence on the record, the RAD concurred with the RPD’s finding that the Applicant’s allegations were not credible and that he was not a credible witness. The RAD concluded, after a consideration of the totality of the evidence, that it was left with the fact that the Applicant is a heterosexual man from Ghana who was diagnosed with HIV after his arrival in Canada.
[16] The RAD then considered the evidence relating to the Applicant’s sur place claim, based on his status as a person who is HIV positive, and considered whether he would face a serious possibility of persecution as a result of that status. In doing so, the RAD reviewed the evidence that was before the RPD. Having done so, it concluded that the Applicant did not provide sufficient credible or trustworthy evidence to persuade it that the treatment he would face would rise to the level of persecution. Moreover, the RAD concluded that the Applicant had not provided sufficient credible or trustworthy evidence that he would be perceived as sexually immoral or to be a homosexual because of his HIV positive status. Even if that was the case, the Applicant had also failed to provide sufficient credible or trustworthy evidence that the stigma he might face would rise to the level of persecution and would result in a denial of a core human right.
[17] As a result, the RAD confirmed the RPD’s determination that the Applicant is neither a Convention refugee nor a person in need of protection, pursuant to s 111(1)(a) of the IRPA. Therefore, the appeal was dismissed.
Issues [18] In my view, the issues can be framed as follows:
Did the RAD err in interpreting s 110(4) by finding that it did not have the discretion to admit new evidence that was otherwise technically inadmissible and, therefore, fail to consider Charter values in refusing to admit the new evidence?
2. Did the RAD err in applying s 110(4) when it refused to consider updated documents in the NDP?
3. Did the RAD unreasonably conclude that the evidence regarding discrimination against HIV positive individuals in Ghana did not amount to persecution?
Standard of Review [19] As to the first issue, the Applicant submits that the RAD’s interpretation of s 110(4) is a pure question of law that gives rise to issues under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] and, as such, should be reviewed on the correctness standard (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). Like the standard of review issues raised in Huruglica, the test to apply under this provision is also a “legal question well beyond the scope of the RAD’s expertise, even though it depends on the interpretation of the IRPA, the RAD’s home statute” (Huruglica at para 30).
[20] The Applicant also submits that review on a correctness standard is important to ensure judicial consistency. Allowing every RAD member to apply their own test when assessing new evidence creates the absurd situation in which the application of the law changes in accordance with each member, rather than the evidence provided. This point was recognized by the Federal Court of Appeal in Raza v Canada (Citizenship and Immigration), 2007 FCA 385 [Raza], where it developed a legal test for assessing the admissibility of new evidence on a Pre-Removal Risk Assessment [PRRA] application, pursuant to s 113(a) of the IRPA, that would apply to all PRRA applications.
[21] The Respondent, on the other hand, submits that the RAD’s interpretation of s 110(4) is squarely within its own expertise and does not involve a question of central importance to the legal system as a whole or any other special circumstances that would require review on a correctness standard. Thus, the reasonableness standard should apply to this issue (Saskatchewan Human Rights Commission v Whatcott, 2013 SCC 11 at para 167; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Assn, 2011 SCC 61 at paras 45-46; McLean v British Columbia, 2013 SCC 67 at paras 26, 30; Singh v Canada (Citizenship and Immigration), 2014 FC 1022 at para 42 [Singh]).
[22] Further, when Charter values are applied to an individual administrative decision, they are applied in relation to a particular set of facts and, therefore, a deferential standard of review is to be applied (Doré v Barreau du Quebec, 2012 SCC 12 at paras 35-36, 52-58 [Doré]).
[23] I agree with the Respondent’s submissions. In the recent decision of Singh (currently under appeal, see: A-512-14), Madam Justice Gagné reviewed the same cases cited by the Respondent above and, based on those cases, she concluded:
[42] Therefore, I am of the view that both the RAD's interpretation of subsection 110(4) of the Act (as a question of law that is not of general importance to the legal system as a whole and outside the expertise of the RAD) and its application to the facts of this case (as a question of mixed fact and law) are to be reviewed on the reasonableness standard.
[24] In the interests of judicial comity, I will therefore review the RAD’s determination that
s 110(4) did not provide it with discretion to admit the new evidence on the reasonableness standard.
[25] As to the second issue, the RAD’s application of s 110(4) is a question of mixed fact and law that is reviewable on the reasonableness standard (Singh at para 42; Iyamuremye v Canada (Citizenship and Immigration), 2014 FC 494 at para 43).
[26] As to the third issue, the RAD’s assessment of the documentary evidence that was before the RPD involves findings of fact that are subject to deference and thus reviewable on the reasonableness standard (Dunsmuir at para 51). As a result, this Court will not intervene as long as the RAD’s assessment is justified, transparent and intelligible, and “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at para 47).
Issue 1: Did the RAD err in interpreting s 110(4) by finding that it did not have the discretion to admit new evidence that was otherwise technically inadmissible and, therefore, fail to consider Charter values in refusing to admit the new evidence? A. Applicant’s Position [27] The Applicant submits that this matter concerns the factors the RAD must consider when applying the new evidence rule set out in s 110(4) of the IRPA. More specifically, how the RAD should consider its Charter jurisdiction when new evidence is raised that may not be technically admissible but does raise serious evidence of risk that challenges the core findings of the RPD’s decision.
[28] The Applicant submits that the Raza test is not appropriate in the RAD context and, instead, proposes a new test derived from the Supreme Court of Canada’s decision in Doré in which the RAD’s Charter considerations are implicit in its s 110(4) assessment. In this proposed new test, where fresh evidence is submitted that is not technically admissible, the RAD should consider whether that evidence contradicts a specific finding of the RPD and, if allowed, could lead the RAD to a different conclusion on a central aspect of the claim. If it could, then the RAD has an obligation to conduct a proportionality exercise in which it balances the severity of the interference of the Charter protection with the statutory objective. Failure to conduct this assessment, or consider the Charter values in applying s 110(4), is an error of law.
[29] In support of this position, which broadens the RAD’s jurisdiction under s 110(4) to include the discretion to admit new evidence that is technically inadmissible, the Applicant relies on the following arguments.
a) Inconsistent Application at the RAD - The Applicant submits that there are currently three different interpretations by the RAD of its jurisdiction under s 110(4). The first is a strict statutory interpretation, as was applied by the RAD in this case. Under this approach, the factors discussed in Raza and the related jurisprudence regarding PRRA applications do not apply to s 110(4).
The second approach involves the application of the Raza test, which was developed for determining whether evidence is admissible under s 113(a) of the IRPA, a nearly identical provision that applies in the context of a PRRA (for example: X (RE), 2014 CanLII 55520 (CA IRB); X(RE), 2014 CanLII 60409 (CA IRB)). The Applicant submits that a strict application of the Raza test does not fully contemplate the distinct differences between the purposes of a PRRA as opposed to the de novo appeal set out in the RAD. For example, the test fails to account for situations, like the present case, where the evidence may have been available at the time of the RPD hearing, but nevertheless raises a serious issue of risk. However, Raza is useful for establishing that along with express statutory restrictions, there are a number of additional considerations that arise from “necessary implication”, and thus must be considered (Raza at para 14). In the context of the RAD, a factor that arises by “necessary implication” is whether s 110(4) is being read in a manner that is consistent with the RAD’s Charter obligations.
Finally, the Applicant notes that other members of the RAD have adopted a broader interpretation of s 110(4) that acknowledges the fact that the purposes underlying the RAD differ from those that inform the decision of a PRRA officer (for example, in X (Re), 2014 CanLII 33085 (CA IRB) at paras 17-21).
The Applicant submits that these variances in the interpretation of s 110(4) are troubling because they create serious inconsistencies amongst RAD members’ decisions. As such, this case raises an opportunity to clarify the test for the admissibility of new evidence that should be applied by the RAD.
b) Purpose of the RAD - The Applicant also submits that in Singh, the RAD applied the criteria in Raza in determining that the new evidence submitted by the Applicant was not admissible. However, Justice Gagné held that it was unreasonable for the RAD to strictly apply the Raza factors in interpreting s 110(4) without appreciating that its role is quite different from that of a PRRA officer. She also emphasized that the RAD, unlike a PRRA officer, is a quasi-judicial administrative tribunal that has the power, pursuant to s 111(1)(b) of the IRPA, to set aside the RPD’s decision and substitute a determination that it, in its opinion, should have been made. Further, she noted that the underlying rationale for s 113(a) of the IRPA is not appellate in nature, but rather to assure the claimant has a last chance to have any new risks of refoulement, not previously assessed by the RPD, assessed before removal can take place (para 50). By contrast, the RAD considers this evidence in an appellate review of the correctness of the RPD’s determination. A restrictive interpretation of s 110(4) would limit the ability of a claimant to get a ‘full fact-based appeal’. Accordingly, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur.
Relying on these findings in Singh, the Applicant submits that the fact that the RAD is a de novo hearing, with broad remedial powers, and is often the last assessment of risk prior to removal, are all important indicators that the RAD must also ensure that the Applicant’s s 7 Charter rights, which are an inherent part of the refugee process, are upheld in the exercise of its discretion to admit new evidence under s 110(4).
c) Implicit considerations: Parallel Charter and Legislative Jurisdictions - The Applicant submits that in addition to the discretion granted by statute, the RAD also carries inherent Charter jurisdiction because it is a critical part of the entire refugee process, which was specifically implemented to protect s 7 Charter interests. Moreover, ss 3(3)(d) and (f) of the IRPA require that all clauses in the IRPA must be construed and applied in a manner that is consistent with the Charter as well as international human rights instruments. When evidence that may give rise to a real issue of risk is technically inadmissible due to express statutory restrictions, a conflict arises between the RAD’s s 7 Charter jurisdiction that prevents an applicant from being removed to a country of possible risk, and the RAD’s jurisdiction under the statutory condition, which Parliament put in place to avoid wasteful litigation. The Applicant submits that s 110(4) must be read in a manner that recognizes these “parallel jurisdictions”.
d) Paramountcy of Charter Jurisdiction - The Applicant relies on two decisions in the PRRA context in which, he submits, the paramountcy principle, where Charter interests override the legislative interests, is observed (Elezi v Canada (Citizenship and Immigration), 2007 FC 240 at para 45 [Elezi]; Ramos Sanchez v Canada (Citizenship and Immigration), 2009 FC 101 at para 49 [Sanchez]). In Sanchez, the Court held that
[49] […] even if the Officer may exclude a report under paragraph 113(a), the PRRA Officer had discretion to consider the report. A PRRA Officer is not limited to considering evidence submitted by the applicant, but rather has an obligation to conduct sufficient independent research in order to come to a proper determination. The Officer did consult and rely on other sources in addition to the documents submitted, including two Response to Information Requests from April 2006, also pre-dating the hearing. The PRRA Officer therefore erred in that he failed to properly exercise his discretion to consider credible, material evidence that supports Mr. Ramos Sanchez's allegations of risk. [Footnotes omitted]
The Applicant also submits that if, per Sanchez, a PRRA officer has a discretionary obligation to conduct independent research beyond the reports on the record, then it would be preposterous to state that he could not also consider clear evidence that is on the record.
e) The Balancing Approach - The Applicant submits that in Raza, the Federal Court of Appeal found that the interpretation of s 113(a) of the IRPA involved both an explicit reading of that provision, as well as implicit considerations. The RAD, unlike PRRA officers, is a court of competent jurisdiction and as such has the discretion to provide a s 24(1) Charter remedy (R v Conway, 2010 SCC 22 at para 81 [Conway]; IRPA, s 162; Refugee Appeal Division Rules, SOR/2012-257, Rule 25 [RAD Rules]). Therefore, the Applicant submits that the interpretation of s 110(4) should also involve implicit considerations such as the fact that, as a court of competent jurisdiction, the RAD is required to ensure that Charter rights and values are protected.
[30] The Applicant submits that interpreting s 110(4) in a rigid manner, with no element of Charter discretion, would lead to a rigid regime in which new evidence would be rejected under a technical reading of the statute and applicants would be routinely forced to seek a remedy pursuant to s 24 of the Charter. Such an approach would give rise to an unyielding bifurcated regime in which Charter principles are pitted directly against Parliamentary intent, with no flexibility for the RAD to consider both interests.
[31] Recent Supreme Court of Canada jurisprudence has favoured a more nuanced approach in which Charter values are folded into all reasonable decisions and are “fully addressed within the framework of the Board’s statutory mandate and the exercise of its discretion in accordance with Charter values” (Conway at para 103). More recently, in Doré, the Supreme Court confirmed that when bestowed with discretionary-like authority under a statute, a decision-maker is required to consider and balance Charter values as part of a reasonable exercise of that authority (paras 6-7; and 35). The Doré analytical framework, which guides decision-makers in applying Charter values when exercising their discretion (at paras 55–58), was recently reaffirmed by the majority decision in Loyola High School v Quebec (Attorney General), 2015 SCC 12 at para 3 [Loyola High School].
[32] Following Doré, the Applicant submits that the RAD’s parallel Charter jurisdiction should be implicitly folded into the s 110(4) analysis. Thus, even if the RAD finds that new evidence is technically inadmissible, it must go on to assess whether that evidence, if included, would raise a serious possibility of risk. In doing so, the RAD must balance Parliament’s desire for expediency while still ensuring the Applicant’s Charter right is infringed upon no more than is necessary.
[33] In the present case, the RAD found that there was insufficient evidence to determine whether the discrimination the Applicant would face as a result of his HIV positive status amounts to persecution. However, that analysis was based only on the documents that were before the RPD, and had the RAD simply “turned the page”, i.e. accepted the new evidence, it would have found a plethora of evidence clearly outlining the extreme stigma faced by individuals living with HIV. An analysis of this evidence could clearly have contradicted the RPD’s determination that the Applicant would not face persecution upon return to Ghana.
[34] In considering whether to admit the new evidence, the RAD had an obligation to consider whether rejecting that evidence would have an impact on the Applicant’s s 7 Charter rights, and if so, the RAD was required to balance any infringement against Parliament’s intent to make the RAD a fast and expedient process. Failure to conduct this balancing amounts to an error of law.
B. Respondent’s Position [35] The Respondent submits that there was no error in the application of the test for admitting new evidence; the Applicant has failed to show that the RAD erred in refusing to admit the new evidence. It properly applied s 110(4) and reasonably concluded that the evidence did not meet the statutory requirements, which is admitted by the Applicant. The Applicant failed to establish that he could not have provided the new country condition evidence to the RPD and it was therefore open to the RAD to apply the statutory limitations in considering whether to admit the new evidence.
[36] The Respondent submits that the RAD’s interpretation of s 110(4) is consistent with the Charter and that Charter values do not provide extra-legislative discretion to admit evidence that is clearly inadmissible under that provision. In support of these points, the Respondent makes the following submissions.
a) Applicant has misapprehended the function of the RAD - As a preliminary matter, the Respondent submits that the Applicant has mischaracterized the role of the RAD. It is not an appeal de novo, but rather it conducts a mostly, or entirely, paper-based appeal of the RPD decision where it considers potential errors in the decision of the RPD that are raised by the appellant (Eng v Canada (Citizenship and Immigration), 2014 FC 711 at para 26; Spasoja v Canada (Citizenship and Immigration), 2014 FC 913 at paras 42-44; Dhillon v Canada (Citizenship and Immigration), 2015 FC 321 at para 18).
Moreover, the RAD is not a body that allows an appellant to provide better evidence where the evidence submitted to the RPD is found lacking. The limitation on the acceptance of new evidence in s 110(4) clearly indicates that this was not the intended function.
b) Application of s 110(4) by the RAD is not fundamentally inconsistent - The Respondent takes issue with the Applicant’s assertion that there are significant differences in the application of the Raza analysis by different RAD members. It submits that these decisions are consistent in that they all require an appellant to first meet the test that is set out in s 110(4). If that test is not met, then the inquiry ends and the evidence is not admitted (X (Re), 2014 CanLII 55520 (CA IRB) at para 4; X (Re), 2014 CanLII 60386 (CA IRB) at paras 23-28). Further, the Raza test is simply an acknowledgment that, even if the statutory conditions are met, evidence may still be excluded “on one of the grounds stated” (Raza at paras 13-16).
c) Applicant has failed to show that the Charter is engaged - The Respondent submits that the Applicant has failed to establish that his s 7 Charter rights are engaged. According to Canada (Attorney General) v Bedford, 2013 SCC 72 at para 75, in order to engage s 7, there must be a sufficient causal connection between the state-caused effect and the prejudice suffered by the claimant. The Applicant has provided no evidence to establish that his s 7 rights are engaged by the RAD’s refusal to admit the new evidence.
Relying on Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 SCR 711 at 736 [Chiarelli], the Respondent submits that if the deportation of foreign nationals does not, in itself, engage their liberty or security of the person interests, neither does the refusal to admit evidence pursuant to s 110(4) of the IRPA.
Furthermore, even if s 7 is engaged in this case, the Applicant has not shown that he has been deprived of his rights in a manner that is not in accordance with the principles of fundamental justice, as the right to an appeal is not such a principle. As the right to an appeal does not constitute a principle of fundamental justice, the restriction on the Applicant’s access to such an appeal does not violate his s 7 rights. In general, parties seeking an appeal are required to make their cases before the first instance decision-maker, and are not entitled to bring fresh evidence on appeal (Palmer and Palmer v the Queen (1979), [1980] 1 SCR 759).
The Supreme Court of Canada has found that since appeals are creatures of statute, there exists no absolute right of an appeal (Medovarski v Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 539 at para 47). Moreover, the fact that the Federal Court can review the RAD’s decision provides a further indication that the Applicant is afforded fundamental justice, and that the RAD is not required to conduct an appeal de novo of the RPD hearing (Chiarelli at para 41; Kourtessis v Minister of National Revenue, [1993] 2 SCR 53 at pp 69-70; Williams v Canada (Minister of Citizenship and Immigration), [1997] 2 FC 646 (CA) at pp 664-667; leave to appeal dismissed [1997] SCCA No 332 ; Luitjens v Canada (Secretary of State), [1992] FCJ No 319).
d) New evidence does not raise a Charter issue - The Respondent also submits that the new evidence in question does not provide serious or persuasive evidence that the Applicant will be at risk in Ghana. Rather, the evidence provides general commentary about the existence of stigma for persons living with HIV in Ghana. None of the documents are specific to the Applicant. The situation differs from the case of Elezi, the decision relied on by the Applicant regarding the admissibility of new evidence in a PRRA application. In that decision, the Court noted that the new evidence was “unlike country condition reports”, in that it was specific to the applicant and tended to confirm his story.
e) Section 110(4) is consistent with the Charter – Further, refugee claimants do not enjoy a fundamental guarantee of a continual opportunity to provide better evidence on appeal when they had the opportunity to present their evidence to the RPD. Requiring litigants to put their best and most complete case before an adjudicator of first instance is a common practice before courts and tribunals and is entirely consistent with the principles of fundamental justice.
The admittance of new evidence before a PRRA officer is restricted by a very similar provision, which allows a PRRA officer to refuse to admit new evidence where it fails to meet the statutory requirements. This restriction on new evidence in the PRRA context has been found to be compatible with s 7 of the Charter (Doumbouya v Canada (Citizenship and Immigration), 2007 FC 1187 at paras 92-94; Abdollahzadeh v Canada (Citizenship and Immigration), 2007 FC 1310 at para 35; Tran v Canada (Public Safety and Emergency Preparedness), 2010 FC 175 at para 34; Moizisk v Canada (Citizenship and Immigration), 2004 FC 48 at para 13).
The ability to admit new evidence in an appeal to the RAD is an additional layer of protection in a system that was already compliant with the Charter. Evidence of new risk developments or new evidence supporting risk allegations already brought before the RPD may be submitted, provided that an appellant provides a reasonable explanation as to why such evidence was not provided to the RPD. It is also open to an applicant to seek judicial review of the RAD’s refusal to admit evidence where he believes that refusal was unreasonable. Failed refugee claimants also have an additional opportunity to raise new risks not previously considered upon removal, a process which has recently been found to be Charter compliant (Peter v Canada (Public Safety and Emergency Preparedness), 2014 FC 1073).
f) No Charter breach alleged - The Respondent notes that the Applicant has not alleged that the test set out in s 110(4) violates the Charter. Moreover, the Applicant has not shown that there is an ambiguity in s 110(4) that calls for a resort to Charter values. As the Supreme Court of Canada held in Bell ExpressVu Limited Partnership v Rex, [2002] 2 SCR 559, if a statute is unambiguous, effect should be given to the clearly expressed legislative intent, and there is no need to call upon Charter values in interpreting the statute (R v Clarke, 2014 SCC 28 at paras 62-64; R v Rodgers, [2006] 1 SCR 554).
g) Charter values do not provide extra-legislative discretion - The Respondent submits that by arguing that the RAD has a “parallel jurisdiction” under the Charter, the Applicant is effectively attacking s 110(4) without challenging its constitutional validity. Absent a direct constitutional challenge, the Applicant cannot use the Charter to challenge a clear limitation on the admission of new evidence.
While the Applicant relies on Elezi, that case is of little assistance because in addition to the evidence being of a different nature, the Court also found that the applicant could not reasonably have been expected in the circumstances to have presented that new evidence to the RPD (at paragraph 43). The officer’s decision was therefore unreasonable as the applicant met the test for admission of new evidence. Thus, to the extent that the Court indicated an officer may accept evidence that is “technically inadmissible”, this finding is obiter (Foinding v Canada (Public Safety and Emergency Preparedness), 2009 FC 500 at para 34; Ghannedi v Canada (Citizenship and Immigration), 2014 FC 879 at para 19).
The Doré analysis is only engaged where there is a discretionary administrative decision. Subsection 110(4) does not provide the RAD with discretion to admit new evidence that does not meet the conditions provided for in the subsection. The Applicant has not challenged the RAD’s conclusion that he did not provide a reasonable explanation for not having brought his new evidence before the RPD. To the extent that the Applicant concedes that none of the conditions for admission provided for under s 110(4) were met in his case, the RAD did not have any discretion to exercise and, therefore, the analysis in Doré does not apply (see Loyola High School at para 35; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 52 [Baker]).
h) RAD’s decision is consistent with Charter values - The Respondent submits, in any event, that the RAD’s application of s 110(4) in assessing the reasonableness of the Applicant’s explanation for not having provided the evidence to the RPD is consistent with Charter values. The RAD properly balanced these values in light of the objective of s 110(4), which is to provide a fast and efficient appeal mechanism for refugee claimants (House of Commons Debates, 40th Parl, 3rd Sess, No 033 (26 April 2010) at 143 (Hon Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism); House of Commons, Standing Committee on Citizenship and Immigration, 40th Parl, 3rd Sess (Tuesday 1 Jun 2010) at 13-14 (John Butt, Manager, Program Development, CIC)). The RAD is mandated to identify errors in the decisions of the RPD that are raised by the party seeking the appeal. It is not intended to be a hearing de novo and reconsider a claimant’s entire refugee claim. As such, it is reasonable that there are restrictions on the scope of evidence that may be accepted by the RAD.
[37] The restriction on new evidence is also consistent with the overall goal of the IRPA to establish fair and efficient procedures that maintain the integrity of the Canadian refugee protection system (IRPA, s 3(2)(e)) while upholding Canada’s respect for human rights and fundamental freedoms. The RAD must balance these objectives, and thus, the scope of its function, including the acceptance of new evidence, is limited.
[38] The RAD’s decision was also reasonable because the Applicant had the opportunity to present the new evidence for consideration in his refugee claim, as the documents were available at the time of his hearing. He also had the opportunity to have them considered by the RAD by providing a reasonable explanation for his failure to present them at the RPD. His inability to do so was the result of deficiencies in his own actions.
[39] The RAD also considered that the Applicant was represented before the RPD by experienced counsel who made extensive submissions on the Applicant’s risk due to his HIV positive status. It was open to the Applicant to show that there had been a breach of natural justice based on his former counsel’s incompetence, but he failed to do so (R v GDB, [2000] 1 SCR 520 at paras 26-29; Williams v Canada (Minister of Employment and Immigration), [1994] FCJ No 258 at para 20; Cove v Canada (Minister of Citizenship and Immigration) 2001 FCT 266 at paras 6-8; Betesh v Canada (Citizenship and Immigration), 2008 FC 173 at paras 15-16; Ghannedi v Canada (Citizenship and Immigration), 2014 FC 879 at para 19)).
[40] Finally, the new evidence is not evidence of a new risk allegation that was not considered by the RPD or evidence that is personal to the Applicant. Rather, it consisted of additional general country condition documentation concerning the stigma for persons with HIV in Ghana; it did not demonstrate that the Applicant would face risk in Ghana as a result of his HIV positive status. It was not unreasonable for the RAD to conclude that the nature of this evidence did not warrant admitting it when considering the reasonableness of the Applicant’s explanation for not providing it earlier.
[41] For all these reasons, the Respondent submits that the RAD’s decision represents a reasonable and proportionate balancing of the Charter values and statutory objectives at issue.
Analysis [42] The Applicant’s position is, in essence, centered on the Supreme Court of Canada’s decision in Doré. There, the Supreme Court faced a challenge to the constitutionality of a decision of a disciplinary body, which asserted that the decision violated the applicant’s freedom of expression under the Charter. This raised the question of how to protect Charter guarantees and the values they reflect in the context of adjudicated administrative decisions. The Court stated that normally, if a discretionary administrative decision is made by an adjudicator within his or her mandate, the decision is judicially reviewed for its reasonableness. The question was whether the presence of a Charter issue called for the replacement of that administrative framework with the test described in R v Oakes, [1986] 1 SCR 103 [Oakes] that is traditionally used to determine whether the state has justified a law’s violation of the Charter as a “reasonable limit” under s 1 (Doré at paras 2-3). Justice Abella stated that it was clear that in exercising their discretion, administrative decision-makers must act consistently wit