CANADA (CITIZENSHIP AND IMMIGRATION) v. SINGH [2016] 4 FCR 230

For the admissibility of evidence under sub section 110(4) of IRPA, the explicit requirements set out in the provision should be taken into consideration.

This case pertains to the decision regarding the application of an appeal from the judgment of the Federal Court wherein the appellant, the Minister of Citizenship and Immigration had raised the question of construing subsection 110(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] while dealing with the respondent, Mr. Parminder Singh. This case revolves around the issue of admissibility of evidence under subsection 110(4) of the IRPA and the involvement of considerations made in the case of Raza v. Canada (Citizenship and Immigration), 2007 FCA 385.

The facts of the case reflect that the respondent, a citizen of India on being detained by the police regarding the questions of his friend Bhupinder Singh, had arrived Canada with the help of a smuggler. Since his documents were suspicious, he was told to report weekly to the Canada Border Services Agency’s (CBSA) office. The Refugee Protection Division [RPD] found out that among four documents which were filed by him as identity proofs, only Birth Certificate did not raise any issue, so just one document could not establish his identity. His narratives also did not seem credible due to certain fallacies in the chronology of important events he was narrating. Then on an appeal, he filed for an additional evidence i.e. the copy of his diploma which earlier he could not produce. The Refugee Appeal Division (RAD) refused to admit diploma as the evidence at this stage on grounds that subsection 110(4) of the IRPA should be interpreted in consonance with paragraph 113(a) of the same statute and in particular on the basis of observations in the case of Raza v. Canada. Secondly, it contemplated that if any evidence corroborates or rebuts the findings of RPD, then it does not make it a new evidence. Moreover, the respondent had the access to the Diploma and it could have been expected that he would present the document at the hearing before the RPD. In judicial review before the Federal Court, the Court interpreted Subsection 110(4) and concluded that it was not reasonable for a tribunal to refuse to allow the evidence of diploma and that it has strictly applied the consideration of Raza v. Canada in the case at hand which was not the correct view.

In the Appeal, the Court observed that as per the conditions under Subsection 110(4), the evidences which are admissible are the ones which arose after the rejection of the claim or that was not reasonably available or if the person could not have presented the evidence in time. Further, the court opined that exclusion of the diploma by the RAD is not contrary to the principles of fundamental justice. Furthermore, there was no valid reason to not apply the implicit criteria established by the Court in Raza to the subsection 110(4) of IRPA. Thus, the interpretation of RAD with regard to the said section was considered reasonable as well as correct and the court reiterated that the evidence of diploma could not be called a fresh evidence. Therefore, the court held that the judgment of Federal Court should be set aside and the RAD decision should be confirmed.