On June 17, 2015, Justice Barnes contributed to the discussion concerning the test for admission of the new evidence before the newly created Refugee Appeal Division (“RAD”) – leaning in favour of a more relaxed test beyond that of Raza for Pre-Removal Risk Assessment (“PRRA”) applications.

 

Facts of the case:

-The Applicants claim to be citizens of Eritrea;

-The Applicants presented identity documents before the Refugee Protection Division (“RPD”) in the form of birth certificates and divers’ licenses;

-The RPD rejected the evidence concluding that the Applicants probably lived in Eritrea but were not Eritrean citizens;

-At the RAD the Applicants attempted to present originals of their birth certificates and a baptismal certificate from Eritrea;

 

The RAD found that it was within the range of possible and acceptable outcomes that the Applicants have not established their identity before the RPD. As for the new tendered evidence, the RAD found them non-credible on the basis of the RPD credibility findings. The RAD did not conduct an independent analysis of the reliability of the new documents.

 

Minister’s counsel argued that the RAD was right to reject new documents as they did not fit the principles set out in Raza v Canada – the test used for admissibility of new evidence for a PRRA application.

 

Justice Barnes held that while the basic principles from Raza “can be helpful, this Court has since observed that a more generous approach to the acceptance of new evidence may be appropriate in the context of a RAD appeal than in a PRRA: see Singh v Canada (Minister of Employment and Immigration), 2014 FC 1022 at para 3-42, 246 ACWS (3d) 433.”

 

Legally Canadian: This case is part of the current discussion at the Federal Court as to the test for admissibility of new evidence before the RAD. In Singh above, Justice Gagné concluded ” in order for there to be a ‘full fact-based appeal’ before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur,” finding that it is inappropriate to apply Raza strictly.

 

However, Justice Mosley in Denbel v Canada, 2015 FC 629, respectfully disagreed with the Court’s position in Singh, and held that the Court has to give priority to the legislative intent. He held that due to the similarity of the legislative texts governing the admission of new evidence for RAD and PRRA, Parliament intended these two provision to enshrine the same legal test, “If Parliament had intended to establish more flexible admissibility rules in RAD appeals, it would not have replicated the restrictive language which governs PRRAs.”

 

This recent decision from Justice Barnes once again reaffirms the Court’s position for a more flexible test, although acknowledging that Raza “can be helpful”. The case further illustrates that for now there is no consensus regarding the application of Raza as the Court appears to be divided on the subject.