Refugee Appeal Division ignored explanations about inconsistencies
In a recent case, the Federal Court ruled it is unreasonable to deny a refugee claim if the decision-maker fails to meaningfully engage with the submissions and issues raised before it.
In Tahir v. Canada (Citizenship and Immigration), 2021 FC 1202, the applicant was a citizen of Chad who said he fears persecution in his home country due to his Gorane ethnicity. He eventually escaped to the U.S. before irregularly entering Canada where he made a claim for refugee protection.
The Refugee Protection Division (RPD) denied his claim, finding that he was not a credible witness due to several inconsistencies in the reports and evidence. On appeal to the Refugee Appeal Division (RAD), the applicant sought to have a number of documents admitted as new evidence but these were rejected.
The Federal Court found that the RAD correctly rejected the documents presented as new evidence but committed an error in finding that the applicant was not credible. The RAD failed to directly engage with the issues and submissions before it made a negative credibility finding.
New evidence
The RAD refused to admit as new evidence a letter which had already been presented before the RPD and was rejected by it. The federal court found RAD’s decision to be reasonable because the division “addressed the issue raised, decided it was not new evidence and, in the absence of submissions to the contrary, concluded there was no basis upon which to find the RPD had erred in refusing to admit the letter.”
The court also highlighted the evidentiary requirements of s. 110(4) of the Immigration and Refugee Protection Act (IRPA), that only evidence which has become available after a claim is rejected, or that which is not reasonably available to or could not have been reasonably contemplated by the applicant, may be admitted upon appeal.
Credibility findings
The federal court also found that the RAD adopted the RPD’s negative credibility findings but failed to engage with the applicant’s submissions raised on appeal. According to the court, the RAD ignored the applicant’s explanations about the inconsistencies that the RPD found in the record.
The court cited the rule established in Canada (Attorney General) v. Vavilov, that “for a decision to reflect the principles of justification and transparency, an administrative decision-maker’s reasons must meaningfully account for the central issues and concerns raised by the parties.”
Due to the errors in the RAD decision, the court returned the matter for redetermination by a different decision-maker.
