Raza v. Canada

Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII),


• This is a big decision on the use of new evidence in PRRA applications

• [2] The principal issue in this appeal is the interpretation of paragraph 113(a) of the IRPA. Paragraph 113(a) deals with the circumstances in which a failed refugee claimant who makes a PRRA application may present evidence to the PRRA officer that was not before the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board.

• [4] Mr. Syed Masood Raza, his wife and their two children are citizens of Pakistan and members of the Shia minority in that country. Mr. Raza suffered attacks in 1994 at the hands of Sipah-e-Sahaba Pakistan extremists because of Mr. Raza’s participation in the religious and business affairs of the Shia community. He reported the attacks to the police, to no avail. Mr. Raza left Pakistan on October 3, 1994 and his family left the following December. They lived in Texas without status until 2003, when they came to Canada. Mr. Raza and his family sought refugee protection under the IRPA on the basis that he had been attacked because of his religious faith and that adequate state protection was not available.

• Refugee claim was denied on the basis that country conditions had improved and state protection was available to Mr. Raza
113 Consideration of an application for protection shall be as follows:
o (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;

• The key passage from Raza is as follows, and it outlines explicit and implicit questions raised by 113(a).

o [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows:

 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered.

 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered.

 3. Newness: Is the evidence new in the sense that it is capable of:
• (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or
• (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or
• (c) contradicting a finding of fact by the RPD (including a credibility finding)?
If not, the evidence need not be considered.
• 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered.

• 5. Express statutory conditions:

(a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered.

(b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).

o [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a) within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a).

• In this case the documentary evidence provided to the PRRA officer was neither new (date of document creation isn’t determinative of newness) nor material (was essentially a repetition of information which had already been presented in the PRRA)

Raza in other case-law:
Canada (Citizenship and Immigration) v. Parminder Singh, 2016 FCA 96 (CanLII), http://canlii.ca/t/gp31b

o Deals with new evidence in RAD Appeals
o The FCA in Parminder Singh imports the implicit criteria for acceptance of new evidence established in Raza, which dealt with new evidence pursuant to s. 113(a) (PRRA of rejected refugee claimants), into the context of s. 110(4) IRPA (RAD appeals).
110(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.

o One modification had to be made to the fourth implicit criterion set forth in Raza, (“materiality of evidence”)
o Indeed, given the FCA decision in Huruglica, the RAD has a much broader review function than a PRRA officer making a decision on risk following a failed refugee claim.
o The PRRA officer has to show deference to the RPD decision as it is not a review mechanism for the RPD decision. Indeed, only evidence that would show that the RPD decision would have been different had the information been available to it should be considered. The circumstances are different in RAD appeals:

 [47] As for the fourth implicit criterion identified by this Court in Raza, namely, the materiality of the evidence, there may be a need for some adaptations to be made. In the context of a PRRA, the requirement that new evidence be of such significance that it would have allowed the RPD to reach a different conclusion can be explained to the extent that the PRRA officer must show deference to a negative decision by the RPD and may only depart from that principle on the basis of different circumstances or a new risk. The RAD, on the other hand, has a much broader mandate and may intervene to correct any error of fact, of law, or of mixed fact and law. As a result, it may be that although the new evidence is not determinative in and of itself, it may have an impact on the RAD’s overall assessment of the RPD’s decision.