Canada Immigration Case law Canada, Olowolaiyemo, IMMIGRATION — Refugee status — Procedure

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IMMIGRATION — Refugee status — Procedure — Admissibility of new evidence — Refugee claimant was citizen of Nigeria who submitted claim for refugee protection based on his sexual orientation — On February 28, 2014 Refugee Protection Division (“RPD”) refused his claim — Claimant appealed to Refugee Appeal Division (“RAD”) and submitted as new evidence statutory declaration from man dated May 7, 2014, corroborating that he was dating claimant in 2012 and sworn affidavit dated April 28, 2014 of sister of claimant’s male partner in Nigeria — RAD found that affidavit did not meet statutory requirements of s. 110(4) of Immigration and Refugee Protection Act (Can.) since it could reasonably have been obtained prior to rejection of refugee claim and no explanation as to why it was not available — RAD concluded that, while it satisfied statutory requirements, statutory declaration did not meet factors set out in earlier case regarding acceptability of new evidence as it failed to provide sufficient detail on relationship with claimant and was not material — RAD refused to admit additional evidence under s. 110(4) and dismissed appeal — Claimant applied for judicial review — Application allowed — RAD erred by unreasonably interpreting requirements of s. 110(4) and refusing to admit new evidence produced by claimant on that basis — Test in s. 110(4) is disjunctive, not conjunctive, and accordingly new evidence may be accepted by RAD either if it arose after rejection of claim or if it was not reasonably available or person could not have been expected to have presented it at time of rejection — It sufficed that new evidence met one of these elements for RAD to consider accepting it — Conversely, in order for RAD to conclude that new piece of evidence does not meet statutory requirements of s. 110(4), it must consider whether evidence fails to meet both conditions laid out in provision — RAD’s analysis ignored first part of test under s. 110(4) — Unreasonable for RAD to merely import, and automatically transplant, criteria from earlier case in its determination under s. 110(4) — Factors in case, which include consideration of newness, credibility, relevance and materiality of evidence, not necessarily applicable to admissibility of new evidence in context of RAD appeal — RAD appeal is appeal and reconsideration of RPD’s decision whereas PRRA officer’s role does not include revisiting RPD’s factual findings — Role of RAD on appeal materially differs from that of PRRA officer — Here RAD referred extensively to factors and relied more specifically on “materiality” to conclude that statutory declaration did not constitute “new” evidence pursuant to s. 110(4) — RAD did not consider whether or how those factors should be adapted in context of new evidence submitted on appeal