2015 FC 1042, 2015 FC 1042

[2016] 2 F.C.R. 115 IMM-7050-14 2015 FC 1042 Samuel Deri ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Deri v. Canada (Citizenship and Immigration) Federal Court, Strickland J.—Toronto, June 17; Ottawa, September 2, 2015.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Judicial review of Immigration and Refugee Board, Refugee Appeal Division (RAD) decision confirming Refugee Protection Division (RPD) finding that applicant neither Convention refugee nor person in need of protection pursuant to Immigration and Refugee Protection Act (IRPA or Act), ss. 96 or 97 respectively — Applicant, Ghananian, claiming refugee status in Canada — Amending Basis of Claim (BOC) narrative more than once — Claiming, in particular, being bisexual, then HIV positive homosexual fearing persecution in Ghana — RAD refusing to accept new evidence in particular because evidence not meeting requirements of Act, s. 110(4) ; confirming RPD’s decision pursuant to Act, s. 111(1) (a) — Whether RAD erring in interpreting Act, s. 110(4) by finding not having discretion to admit new evidence otherwise technically inadmissible, therefore, failing to consider Canadian Charter of Rights and Freedoms values in refusing to admit new evidence; whether RAD unreasonably concluding that evidence regarding discrimination against HIV positive individuals in Ghana not amounting to persecution — On first issue, RAD’s

interpretation of Act, s. 110(4) reasonable — RAD reasonably concluding not having discretion to admit new evidence found not to meet one of explicit conditions set out in Act, s. 110(4) — Evidence arising after rejection of applicant’s claim — No evidence existing that evidence at issue not reasonably available — Applicant’s argument that RAD’s assessment of documents before RPD unreasonable rejected — RAD accurately setting out, weighing documentary evidence; reasonably concluding evidence not rising to level of persecution — Question regarding exercise of discretion by RAD in relation to new evidence pursuant to Act, s. 110(4) certified — Application allowed.

Citizenship and Immigration — Immigration Practice — Immigration and Refugee Board, Refugee Appeal Division (RAD) decision confirming Refugee Protection Division (RPD) finding that applicant neither Convention refugee nor person in need of protection — RAD refusing to accept new evidence in particular because evidence not meeting requirements of Immigration and Refugee Protection Act, s. 110(4) — Whether RAD erring in interpreting Act, s. 110(4) by finding not having discretion to admit new evidence otherwise technically inadmissible — RAD’s

interpretation of Act, s. 110(4) reasonable — RAD reasonably concluding not having discretion to admit new evidence found not to meet one of explicit conditions set out in Act, s. 110(4) — Evidence arising after rejection of applicant’s claim — No evidence existing that evidence at issue not reasonably available. This was an application for judicial review of a decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada confirming the finding of the Refugee Protection Division (RPD) that the applicant is neither a Convention refugee nor a person in need of protection pursuant to

section 96 or 97 respectively of the Immigration and Refugee Protection Act (IRPA or Act). The applicant, Ghanaian, fled to Canada and claimed refugee status. Initially, in his Basis of Claim (BOC) narrative, he claimed that his life was threatened upon his refusal to accept the chieftaincy of his tribe. Later, he amended his BOC narrative, explaining that he is bisexual and worried about the implications this would cause him in Ghana. The applicant subsequently learned that he was HIV positive and again altered his BOC narrative by indicating that he feared persecution in Ghana given his new HIV positive status.

During the second sitting of his hearing, the applicant claimed that he was a homosexual and had contracted HIV from his male partner. He submitted articles about the stigma faced by Ghanaians who are HIV positive. On appeal to the RAD, the applicant focussed his submissions on the risk of persecution he would face in Ghana as a result of his HIV positive status. He was represented by new counsel who requested to submit inter alia new evidence to the RAD regarding the stigma of being HIV positive in Ghana and argued why the RAD should accept the new evidence pursuant to subsection 110(4) of the Act .

However, the RAD refused to accept the new evidence in particular because it did not meet the requirements of subsection 110(4) of the Act in that it did not arise after the rejection of the applicant’s claim and because the applicant did not provide sufficient evidence to prove that the new evidence was not reasonably available or that he could not reasonably have been expected in the circumstances to have presented the new evidence at the time of the rejection of his claim by the RPD.

The RAD also considered the evidence relating to the applicant’s sur place claim, based on his status as an HIV positive person but concluded that the applicant did not provide sufficient credible or trustworthy evidence to persuade it that the treatment or stigma he would be facing would rise to the level of persecution. Thus, the RAD confirmed the RPD’s decision pursuant to paragraph 111(1) (

a) of the IRPA. The issues were: whether the RAD erred in interpreting subsection 110(4) of the Act by finding that it did not have the discretion to admit new evidence that was otherwise technically inadmissible and, therefore, failed to consider Canadian Charter of Rights and Freedoms values in refusing to admit the new evidence and; whether the RAD unreasonably concluded that the evidence regarding discrimination against HIV positive individuals in Ghana did not amount to persecution. Held , the application should be dismissed.

The first issue turned on whether the RAD has discretion to admit new evidence that does not meet the statutory conditions in subsection 110(4) of the Act . Based on the grammatical and ordinary sense of the language of subsection 110(4), the RAD reasonably concluded that it did not have the discretion to admit new evidence that it found did not meet one of the explicit conditions set out therein. The operative words of subsection 110(4) are that an appellant “may present only evidence” that meets the subsequent conditions.

The use of the word “only” imports exclusivity, limiting the RAD’s consideration exclusively to that evidence that satisfies the factors in subsection 110(4). This is further supported by the context in which subsection 110(4) is found. The RAD must first determine whether the three

explicit conditions set out in subsection 110(4) have been met. If none of the conditions set out therein are met, then, on a plain readingof subsection 110(4), the RAD has no discretion to admit the new evidence. If the new evidence meets the requirements of subsection110(4), then the RAD must accept it. Conversely, if it does not, then the RAD must reject it. While there is an element of subjectivity inassessing whether the evidence was reasonably available or if an applicant could not reasonably have been expected to have previouslypresented it, this is a factual assessment and does not alter the character of the ultimate decision as to admissibility. Accordingly, theRAD’s

interpretation of subsection 110(4) of the Act was reasonable. In this case, the RAD found that the four new documents were all produced before the applicant’s second sitting before the RPD afterthe applicant learned that he was HIV positive and after he added that ground to his refugee claim. He was represented by experiencedcounsel who did disclose some documents relating to the treatment of persons with HIV in Ghana, which were considered by the RPD,and who made submissions on this point.

The applicant did not provide any evidence supporting his explanation for not tendering thenew evidence previously, being that his former counsel was incompetent in not disclosing further documentary evidence. The RAD’sdecision not to admit the new evidence was reasonable. The evidence arose after the rejection of the claim. There was no evidence that itwas not reasonably available. Also, the proposed new evidence in this case was quite similar to the evidence that was before the RPD,which was considered by the RAD.

In these circumstances, even if the RAD did have discretion to consider the new evidence that wastechnically inadmissible, it was reasonable for the RAD not to exercise that discretion. Further, without clear evidence of risk, theapplicant’s

section 7 Charter rights were not engaged and consequently there was no need to consider whether the decision engaged theCharter by limiting its protections. The applicant’s argument that the RAD’s assessment of the documents that were before the RPD was unreasonable was rejected. TheRAD accurately set out the documentary evidence, weighed it and reasonably concluded that it did not rise to the level of persecution.While some of its comments may have been less than substantive, the fact remained that the RAD considered all the admissible evidencein its totality.

The RAD did not ignore the content of the articles and its treatment of them was reasonable. The RAD also found that theapplicant had not rebutted the presumption of state protection with clear and convincing evidence. It concluded that it was not providedwith sufficient credible or trustworthy evidence to persuade it that the treatment that the applicant would face if he returned to Ghanawould rise to the level of persecution.

Finally, a question was certified as to whether the admission of new evidence under subsection 110(4) of the Act involves the exercise ofdiscretion by the RAD and, if so, whether this discretion permits the RAD to admit evidence that does not meet the test under subsection110(4) and whether its admission engages a consideration of Charter values. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 24. Citizenship Act, R.S.C., 1985, c. C-29. Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(2)(e),(3)(d),(f), 96, 97, 110(3),(3.1),(4),(6), 111(1)(a),(b), 113(a), 162. Refugee Appeal Division Rules, SOR/2012-257, rr. 3, 25, 29. CASES CITED APPLIED: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Singh v.

Canada (Citizenship and Immigration), 2014 FC 1022, [2015]3 F.C.R. 587; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418; Kirindage De Silvav. Canada (Citizenship and Immigration), 2007 FC 841, 63 Imm. L.R. (3d) 245. DISTINGUISHED: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613. CONSIDERED: Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, [2014] 4 F.C.R. 811; Raza v. Canada (Citizenship and Immigration),2007 FCA 385, 289 D.L.R. (4th) 675; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Elezi v.

Canada (Minister ofCitizenship and Immigration), 2007 FC 240, [2008] 1 F.C.R. 365; Ramos Sanchez v. Canada (Citizenship and Immigration), 2009 FC101, 79 Imm. L.R. (3d) 12; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Canada (Attorney General) v. Bedford, 2013 SCC 72,[2013] 3 S.C.R. 1101; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817,(1999), 174 D.L.R. (4th) 193. REFERRED TO: Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Alberta (Information and PrivacyCommissioner) v.

Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; McLean v. British Columbia (SecuritiesCommission), 2013 SCC 67, [2013] 3 S.C.R. 895; Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494, [2015] 3 F.C.R.393; X (Re), (I.R.B.); X (Re), (I.R.B.); X (Re), (I.R.B.); Eng v. Canada(Citizenship and Immigration), 2014 FC 711; Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913; Dhillon v. Canada(Citizenship and Immigration), 2015 FC 321; X (Re), (I.R.B.); Chiarelli v.

Canada (Minister of Employment andImmigration), (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289; Palmer et al. v. The Queen,

(SCC), [1980] 1 S.C.R. 759, (1979), 106 D.L.R. (3d) 212; Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v.Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539; Kourtessis v. M.N.R., (SCC),[1993] 2 S.C.R. 53, (1993), 102 D.L.R. (4th) 456; Williams v. Canada (Minister of Citizenship and Immigration), (FCA), [1997] 2 F.C. 646, (1997), 147 D.L.R. (4th) 93 (C.A.); leave to appeal to S.C.C. refused [1997] 3 S.C.R. xv; Luitjens v. Canada(Secretary of State) (1992), 9 C.R.R. (2d) 149, 142 N.R. 173 (F.C.A.); Doumbouya v.

Canada (Citizenship and Immigration), 2007 FC1187, 81 Admin. L.R. (4th) 129; Abdollahzadeh v. Canada (Citizenship and Immigration), 2007 FC 1310, 325 F.T.R. 226; Tran v.Canada (Public Safety and Emergency Preparedness), 2010 FC 175, 361 F.T.R. 101; Mojzisik v. Canada (Minister of Citizenship andImmigration), 2004 FC 48, 245 F.T.R. 183; Peter v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1073, 84 Admin.L.R. (5th) 1; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R.612; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; Foinding v.

Canada (Public Safety and Emergency Preparedness), 2009 FC 500,368 F.T.R. 134; Ghannedi v. Canada (Citizenship and Immigration), 2014 FC 879; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520;Williams v. Canada (Minister of Employment and Immigration) (1994), 74 F.T.R. 34, 24 Imm. L.R. (2d) 167 (F.C.T.D.); Cove v. Canada(Minister of Citizenship and Immigration), 2001 FCT 266; Betesh v. Canada (Citizenship and Immigration), 2008 FC 173; The Queen v.Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200; R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674;Canada Trustco Mortgage Co. v.

Canada, 2005 SCC 54, [2005] 2 S.C.R. 601; Denbel v. Canada (Citizenship and Immigration), 2015FC 629; Canada (Attorney General) v. Ward, (SCC), [1993] 2 S.C.R. 689, (1993), 103 D.L.R. (4th) 1; Zhang v.Canada (Citizenship and Immigration), 2013 FCA 168, [2014] 4 F.C.R. 290; Varela v. Canada (Minister of Citizenship andImmigration), 2009 FCA 145, [2010] 1 F.C.R. 129; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 36 Imm.L.R. (3d) 167.

AUTHORS CITED Adu-Takyi, George Benjamin. “Reducing HIV/AIDS Stigma & Discrimination in Ghana”, Keba Africa, August, 30, 2011, online:<http://www.kebaafrica.org/2011/08/reducing-hivaids-stigma-discrmination-in-ghana/>. Baffoe, Sylvester. “Stigma Against People Living With HIV/AIDS—Ghana’s Situation”, Modern Ghana, September 24, 2013, online:<https://www.modernghana.com/news/492069/1/stigma-against-people-living-with-hivaidsghanas-si.html>. Canada. Parliament. House of Commons Committee. Standing Committee on Citizenship and Immigration.

Evidence, 40th Parl., 3rdSess., Meeting No. 022 (June 1, 2010), online: <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=40&Ses=3&DocId=4575525&File=0>. Canada. Parliament. House of Commons Debates, 40th Parl., 3rd Sess., Vol. 145, No. 033 (April 26, 2010) (Hon. Jason Kenney), online:<http://www.parl.gc.ca/content/hoc/House/403/Debates/033/HAN033-E.PDF>. “FightAIDS Ghana—Stop Stigmatization”. Freedom in the World 2013: Ghana, online: <https://freedomhouse.org/report/freedom-world/2013/ghana>. Gyimah-Boadi, E. and Victor Brobbey.

Countries at the Crossroads 2012: Ghana, online: <https://freedomhouse.org/report/countries-crossroads/2012/ghana>. Immigration and Refugee Board of Canada. Ghana: Treatment of sexual minorities by society and governmental authorities, includinglegislation, state protection, and support services, 16 August 2012, online: <http://irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=454127>. U.K. Border Agency. Ghana Country of Origin Information (COI) Report, 11 may 2012. U.S. Department of State. 2012 Human Rights Reports: Ghana.

Washington: Bureau of Democracy, Human Rights, and Labor, online:<http://www.state.gov/documents/organization/204336.pdf>. U.S. Department of State. 2013 Human Rights Reports: Ghana. Washington: Bureau of Democracy, Human Rights, and Labor, online:<http://www.state.gov/documents/organization/220329.pdf>.

APPLICATION for judicial review of a decision (X (Re), ) of the Appeal Division of the Immigration and RefugeeBoard of Canada confirming the finding of the Refugee Protection Division that the applicant is neither a Convention refugee nor aperson in need of protection pursuant to sections 96 or 97 respectively of the Immigration and Refugee Protection Act. Applicationdismissed. APPEARANCES Aadil Mangalji for applicant. Amy King for respondent. SOLICITORS OF RECORD Long Mangalji LLP, Toronto, for applicant. Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment and judgment rendered in English by [1] Strickland J.: This is an application for judicial review of a decision of the Refugee Appeal Division of the Immigration andRefugee Board of Canada (RAD) [X (Re), ], dated September 17, 2014, in which the RAD confirmed the finding of

the Refugee Protection Division (RPD) that the applicant is neither a Convention refugee nor a person in need of protection pursuant to

section 96 or

section 97 , respectively, of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA). Background [ 2 ] The applicant is a citizen of Ghana. In September 2013, he fled to Canada and made a claim for refugee status. In his initial Basis of Claim (BOC) narrative he claimed that his father’s relatives threatened him with death after he declared that he would not accept the chieftaincy of the Dagari tribe.

On October 18, 2013, he submitted an addendum to his BOC narrative in which he explained that he is bisexual and that he worried that his sexual orientation would be discovered by his community in Ghana. In November 2013, the applicant learned he was HIV positive and, at his first sitting of his hearing before the RPD on December 6, 2013, provided a physician’s letter confirming this.

Prior to the second sitting of his hearing on January 16, 2014, the applicant submitted a second addendum to his BOC narrative in which he explained that he feared persecution upon return to Ghana as a result of his HIV positive status because, after disclosing his status to his wife who is in Ghana, he had received death threats from her family. [ 3 ] At the second sitting of his hearing, the applicant explained to the RPD that he is actually a homosexual, and that he learned he had contracted HIV from his male partner, with whom he had been in a relationship for several years.

In support of the applicant’s claim of persecution based on his HIV status, his counsel submitted three articles about the stigma faced by Ghanaians who are HIV positive. On May 9, 2014, the RPD rendered its negative decision finding the applicant to be neither a Convention refugee nor a person in need of protection. [ 4 ] On appeal to the RAD, the applicant focused his submissions on the risk of persecution he would face in Ghana as a result of his HIV positive status.

His new counsel submitted a request to the RAD to consider four articles about stigma and HIV status in Ghana based on the applicant’s view that there had been a lack of evidence before the RPD on this issue. His new counsel also made detailed submissions about why the RAD should accept the new evidence, pursuant to subsection 110(4) of the IRPA . [ 5 ] The RAD refused to accept the new evidence finding that it did not meet the requirements of subsection 110(4) . It rendered its negative decision on September 17, 2014 confirming the RPD’s decision.

The RPD’s Decision [ 6 ] The determinative issues before the RPD were the applicant’s credibility, the well-foundedness of his fear of persecution, and the issue of discrimination versus persecution. [ 7 ] On the issue of credibility, the RPD concluded that the applicant did not provide credible evidence regarding his fear of persecution as a result of his refusal to accept the chieftaincy.

The RPD further found that the applicant’s evidence was contrary to the objective documentary evidence which stated that a chieftaincy is not forced on anyone who does not aspire to take the position. [ 8 ] With regard to the applicant’s HIV positive status, the RPD accepted that the applicant is a member of a particular social group, and that people with his status in Ghana “suffer a certain degree of [social stigma]” [at paragraph 7].

However, based on the documentary evidence, the RPD concluded that while the applicant may be subject to discrimination upon return to Ghana, that discrimination was not sufficiently persistent and punitive so as to amount to persecution under the IRPA . [ 9 ] Finally, the RPD considered the applicant’s claim that he also fears persecution as a result of his status as a homosexual man, and found the applicant’s evidence on this issue not to be credible for a number of reasons, including the fact that he omitted this information from his initial BOC narrative.

While the applicant provided evidence of his email communications with his male partner in Ghana, the RPD found it implausible that this evidence did not include communications about the applicant’s HIV positive status, especially since the applicant testified that he had disclosed his status to his partner. [ 10 ] The RPD also found that the applicant was not credible overall and, for all these reasons, the applicant’s claim was rejected.

Decision Under Review—RAD Decision [ 11 ] On appeal, the RAD first considered the admissibility of the new evidence pursuant to subsection 110(4) of the IRPA , which evidence was comprised of four articles concerning HIV related stigma and discrimination. The RAD found that the new evidence did not arise after the rejection of the applicant’s claim, as each

article was produced before the applicant’s final sitting before the RPD on January 16, 2014, and after he discovered that he is HIV positive. In his affidavit before the RAD, the applicant stated [at paragraph 14] that he did not “know that [he] was supposed to gather this evidence as part of [his] RPD hearing” and that he “[did] not know why [his] counsel did not gather more of it”.

However, the RAD rejected this explanation, noting that the applicant was represented by experienced counsel who submitted some evidence regarding the treatment of HIV positive individuals in Ghana and made extensive submissions on the risks that the applicant would face as an HIV positive person should he return to Ghana.

Furthermore, the applicant did not provide any evidence to suggest that his former counsel was incompetent in not disclosing further documentary evidence. [ 12 ] In addition, the RAD found that the applicant did not provide sufficient evidence to prove that the new evidence was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented the new evidence at the time of the rejection of his claim by the RPD. [ 13 ] Therefore, the RAD concluded that (at paragraph 18): The RAD finds that it is bound by s. 110(4) of IRPA , and is not bound by jurisprudence which related to the admissibility of new evidence in Pre-Removal Risk Assessment (PRRA) applications, and therefore the RAD does not have discretion to accept evidence that is not covered by s. 110(4) . [ 14 ] Relying on this Court’s decision in Huruglica v.

Canada (Citizenship and Immigration) , 2014 FC 799 , [2014] 4 F.C.R. 811 ( Huruglica ), the RAD noted that its task was to conduct an independent assessment of the applicant’s claim by reviewing the totality of

the evidence which was presented at the time of the rejection. As such, the RAD refused to engage in its own independent research, which was suggested by the applicant’s new counsel in his submissions, and instead limited its analysis to the evidence that was before the RPD at the time of the rejection.

Finally, the RAD noted that it would not consider any of counsel’s submissions that related to the new evidence, or any evidence that was not before the RPD, such as the most recent versions of the Immigration and Refugee Board of Canada’s National Documentation Package (NDP), including the most recent United States Department of State report (U.S. DOS Report). [ 15 ] Turning to the RPD’s decision, the RAD first conducted an independent assessment of the RPD’s credibility findings, despite the fact that the applicant did not challenge any of these findings on appeal.

After reviewing the evidence on the record, the RAD concurred with the RPD’s finding that the applicant’s allegations were not credible and that he was not a credible witness.

The RAD concluded, after a consideration of the totality of the evidence, that it was left with the fact that the applicant is a heterosexual man from Ghana who was diagnosed with HIV after his arrival in Canada. [ 16 ] The RAD then considered the evidence relating to the applicant’s sur place claim, based on his status as a person who is HIV positive, and considered whether he would face a serious possibility of persecution as a result of that status. In doing so, the RAD reviewed the evidence that was before the RPD.

Having done so, it concluded that the applicant did not provide sufficient credible or trustworthy evidence to persuade it that the treatment he would face would rise to the level of persecution. Moreover, the RAD concluded that the applicant had not provided sufficient credible or trustworthy evidence that he would be perceived as sexually immoral or to be a homosexual because of his HIV positive status.

Even if that was the case, the applicant had also failed to provide sufficient credible or trustworthy evidence that the stigma he might face would rise to the level of persecution and would result in a denial of a core human right. [ 17 ] As a result, the RAD confirmed the RPD’s determination that the applicant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1) (

a) of the IRPA . Therefore, the appeal was dismissed. Issues [ 18 ] In my view, the issues can be framed as follows: 1. Did the RAD err in interpreting subsection 110(4) by finding that it did not have the discretion to admit new evidence that was otherwise technically inadmissible and, therefore, fail to consider Charter [ Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] values in refusing to admit the new evidence? 2. Did the RAD err in applying subsection 110(4) when it refused to consider updated documents in the NDP? 3. Did the RAD unreasonably conclude that the evidence regarding discrimination against HIV positive individuals in Ghana did not amount to persecution? Standard of Review [ 19 ] As to the first issue, the applicant submits that the RAD’s

interpretation of subsection 110(4) is a pure question of law that gives rise to issues under the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter) and, as such, should be reviewed on the correctness standard ( Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir )). Like the standard of review issues raised in Huruglica , the test to apply under this provision is also a “legal question well beyond the scope of the RAD’s expertise, even though it depends on the

interpretation of the IRPA , the RAD’s home statute” ( Huruglica , at paragraph 30 ). [ 20 ] The applicant also submits that review on a correctness standard is important to ensure judicial consistency. Allowing every RAD member to apply their own test when assessing new evidence creates the absurd situation in which the application of the law changes in accordance with each member, rather than the evidence provided. This point was recognized by the Federal Court of Appeal in Raza v.

Canada (Citizenship and Immigration) , 2007 FCA 385 , 289 D.L.R. (4th) 675 ( Raza ), where it developed a legal test for assessing the admissibility of new evidence on a pre-removal risk assessment (PRRA) application, pursuant to paragraph 113 (

a) of the IRPA , that would apply to all PRRA applications. [ 21 ] The respondent, on the other hand, submits that the RAD’s

interpretation of subsection 110(4) is squarely within its own expertise and does not involve a question of central importance to the legal system as a whole or any other special circumstances that would require review on a correctness standard. Thus, the reasonableness standard should apply to this issue ( Saskatchewan (Human Rights Commission) v. Whatcott , 2013 SCC 11 , [2013] 1 S.C.R. 467, at paragraph 167 ; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraphs 45–46 ; McLean v.

British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895, at paragraphs 26 and 30 ; Singh v. Canada (Citizenship and Immigration) , 2014 FC 1022 , [2015] 3 F.C.R. 587 ( Singh ), at paragraph 42 ). [ 22 ] Further, when Charter values are applied to an individual administrative decision, they are applied in relation to a particular set of facts and, therefore, a deferential standard of review is to be applied ( Doré v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395 ( Doré ), at paragraphs 35–36 and, 52–58). [ 23 ] I agree with the respondent’s submissions.

In the recent decision of Singh (currently under appeal, see: A-512-14), Madam Justice Gagné reviewed the same cases cited by the respondent above and, based on those cases, she concluded (at paragraph 42): Therefore, I am of the view that both the RAD’s

interpretation of subsection 110(4) of the Act (as a question of law that is not of general importance to the legal system as a whole and outside the expertise of the RAD) and its application to the facts of this case (as a question of mixed fact and law) are to be reviewed on the reasonableness standard.

[24] In the interests of judicial comity, I will therefore review the RAD’s determination that subsection 110(4) did not provide it withdiscretion to admit the new evidence on the reasonableness standard. [25] As to the second issue, the RAD’s application of subsection 110(4) is a question of mixed fact and law that is reviewable on thereasonableness standard (Singh, at paragraph 42; Iyamuremye v.

Canada (Citizenship and Immigration), 2014 FC 494, [2015] 3 F.C.R.393, at paragraph 43). [26] As to the third issue, the RAD’s assessment of the documentary evidence that was before the RPD involves findings of fact thatare subject to deference and thus reviewable on the reasonableness standard (Dunsmuir, at paragraph 51). As a result, this Court will notintervene as long as the RAD’s assessment is justified, transparent and intelligible, and “falls within a range of possible, acceptableoutcomes which are defensible in respect of the facts and law” (Dunsmuir, at paragraph 47).

Issue 1: Did the RAD err in interpreting subsection 110(4) by finding that it did not have the discretion to admit new evidence thatwas otherwise technically inadmissible and, therefore, fail to consider Charter values in refusing to admit the new evidence? A. Applicant’s Position [27] The applicant submits that this matter concerns the factors the RAD must consider when applying the new evidence rule set outin subsection 110(4) of the IRPA.

More specifically, how the RAD should consider its Charter jurisdiction when new evidence is raisedthat may not be technically admissible but does raise serious evidence of risk that challenges the core findings of the RPD’s decision. [28] The applicant submits that the Raza test is not appropriate in the RAD context and, instead, proposes a new test derived from theSupreme Court of Canada’s decision in Doré in which the RAD’s Charter considerations are implicit in its subsection 110(4) assessment.In this proposed new test, where fresh evidence is submitted that is not technically admissible, the RAD should consider whether thatevidence contradicts a specific finding of the RPD and, if allowed, could lead the RAD to a different conclusion on a central aspect ofthe claim.

If it could, then the RAD has an obligation to conduct a proportionality exercise in which it balances the severity of theinterference of the Charter protection with the statutory objective. Failure to conduct this assessment, or consider the Charter values inapplying subsection 110(4), is an error of law. [29] In support of this position, which broadens the RAD’s jurisdiction under subsection 110(4) to include the discretion to admit newevidence that is technically inadmissible, the applicant relies on the following arguments. (

a) Inconsistent Application at the RAD—The applicant submits that there are currently three different

interpretations by the RAD ofits jurisdiction under subsection 110(4). The first is a strict statutory

interpretation, as was applied by the RAD in this case. Under thisapproach, the factors discussed in Raza and the related jurisprudence regarding PRRA applications do not apply to subsection 110(4). The second approach involves the application of the Raza test, which was developed for determining whether evidence is admissibleunder paragraph 113(

a) of the IRPA, a nearly identical provision that applies in the context of a PRRA (for example: X (Re), (I.R.B.); X (Re), (I.R.B.)). The applicant submits that a strict application of the Raza test does notfully contemplate the distinct differences between the purposes of a PRRA as opposed to the de novo appeal set out in the RAD. Forexample, the test fails to account for situations, like the present case, where the evidence may have been available at the time of the RPDhearing, but nevertheless raises a serious issue of risk.

However, Raza is useful for establishing that along with express statutoryrestrictions, there are a number of additional considerations that arise from “necessary [implication]”, and thus must be considered (Raza,at paragraph 14). In the context of the RAD, a factor that arises by “necessary [implication]” is whether subsection 110(4) is being readin a manner that is consistent with the RAD’s Charter obligations. Finally, the applicant notes that other members of the RAD have adopted a broader

interpretation of subsection 110(4) thatacknowledges the fact that the purposes underlying the RAD differ from those that inform the decision of a PRRA officer (for example,in X (Re), (I.R.B.), at paragraphs 17–21). The applicant submits that these variances in the

interpretation of subsection 110(4) are troubling because they create seriousinconsistencies amongst RAD members’ decisions. As such, this case raises an opportunity to clarify the test for the admissibility of newevidence that should be applied by the RAD. (

b) Purpose of the RAD—The applicant also submits that in Singh, the RAD applied the criteria in Raza in determining that the newevidence submitted by the applicant was not admissible. However, Justice Gagné held that it was unreasonable for the RAD to strictlyapply the Raza factors in interpreting subsection 110(4) without appreciating that its role is quite different from that of a PRRA officer.She also emphasized that the RAD, unlike a PRRA officer, is a quasi-judicial administrative tribunal that has the power, pursuant toparagraph 111(1)(

b) of the IRPA, to set aside the RPD’s decision and substitute a determination that it, in its opinion, should have beenmade. Further, she noted that the underlying rationale for paragraph 113(

a) of the IRPA is not appellate in nature, but rather to assure theclaimant has a last chance to have any new risks of refoulement, not previously assessed by the RPD, assessed before removal can takeplace (paragraph 50). By contrast, the RAD considers this evidence in an appellate review of the correctness of the RPD’s determination.A restrictive

interpretation of subsection 110(4) would limit the ability of a claimant to get a “full fact-based appeal”. Accordingly, thecriteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Relying on these findings in Singh, the applicant submits that the fact that the RAD is a de novo hearing, with broad remedial powers,and is often the last assessment of risk prior to removal, are all important indicators that the RAD must also ensure that the applicant’ssection 7 Charter rights, which are an inherent part of the refugee process, are upheld in the exercise of its discretion to admit newevidence under subsection 110(4). (

c) Implicit considerations: Parallel Charter and Legislative Jurisdictions—The applicant submits that in addition to the discretiongranted by statute, the RAD also carries inherent Charter jurisdiction because it is a critical part of the entire refugee process, which wasspecifically implemented to protect

section 7 Charter interests. Moreover, paragraphs 3(3)(

d) and (

f) of the IRPA require that all clausesin the IRPA must be construed and applied in a manner that is consistent with the Charter as well as international human rights

instruments. When evidence that may give rise to a real issue of risk is technically inadmissible due to express statutory restrictions, a conflict arises between the RAD’s

section 7 Charter jurisdiction that prevents an applicant from being removed to a country of possible risk, and the RAD’s jurisdiction under the statutory condition, which Parliament put in place to avoid wasteful litigation. The applicant submits that subsection 110(4) must be read in a manner that recognizes these “parallel jurisdictions”. (

d) Paramountcy of Charter Jurisdiction —The applicant relies on two decisions in the PRRA context in which, he submits, the paramountcy principle, where Charter interests override the legislative interests, is observed ( Elezi v. Canada (Minister of Citizenship and Immigration) , 2007 FC 240 , [2008] 1 F.C.R. 365 ( Elezi ), at paragraph 45 ; Ramos Sanchez v. Canada (Citizenship and Immigration) , 2009 FC 101 , 79 Imm. L.R. (3d) 12 ( Sanchez ), at paragraph 49 ).

In Sanchez , the Court held that: … even if the Officer may exclude a report under paragraph 113(a), the PRRA Officer had discretion to consider the report. A PRRA Officer is not limited to considering evidence submitted by the applicant, but rather has an obligation to conduct sufficient independent research in order to come to a proper determination. The Officer did consult and rely on other sources in addition to the documents submitted, including two Response to Information Requests from April 2006, also pre-dating the hearing.

The PRRA Officer therefore erred in that he failed to properly exercise his discretion to consider credible, material evidence that supports Mr. Ramos Sanchez’s allegations of risk. [Footnotes omitted.] The applicant also submits that if, per Sanchez , a PRRA officer has a discretionary obligation to conduct independent research beyond the reports on the record, then it would be preposterous to state that he could not also consider clear evidence that is on the record. (

e) The Balancing Approach —The applicant submits that in Raza , the Federal Court of Appeal found that the

interpretation of paragraph 113 (

a) of the IRPA involved both an explicit reading of that provision, as well as implicit considerations. The RAD, unlike PRRA officers, is a court of competent jurisdiction and as such has the discretion to provide a subsection 24(1) Charter remedy ( R. v. Conway , 2010 SCC 22 , [2010] 1 S.C.R. 765 ( Conway ), at paragraph 81 ; IRPA,

section 162 ; Refugee Appeal Division Rules , SOR/2012- 257, rule 25 (RAD Rules)). Therefore, the applicant submits that the

interpretation of subsection 110(4) should also involve implicit considerations such as the fact that, as a court of competent jurisdiction, the RAD is required to ensure that Charter rights and values are protected. [ 30 ] The applicant submits that interpreting subsection 110(4) in a rigid manner, with no element of Charter discretion, would lead to a rigid regime in which new evidence would be rejected under a technical reading of the statute and applicants would be routinely forced to seek a remedy pursuant to

section 24 of the Charter. Such an approach would give rise to an unyielding bifurcated regime in which Charter principles are pitted directly against Parliamentary intent, with no flexibility for the RAD to consider both interests. [ 31 ] Recent Supreme Court of Canada jurisprudence has favoured a more nuanced approach in which Charter values are folded into all reasonable decisions and are “fully addressed within the framework of the Board’s statutory mandate and the exercise of its discretion in accordance with Charter values” ( Conway , at paragraph 103 ).

More recently, in Doré , the Supreme Court confirmed that when bestowed with discretionary-like authority under a statute, a decision maker is required to consider and balance Charter values as part of a reasonable exercise of that authority (paragraphs 6–7 and 35). The Doré analytical framework, which guides decision makers in applying Charter values when exercising their discretion (at paragraphs 55–58), was recently reaffirmed by the majority decision in Loyola High School v.

Quebec (Attorney General) , 2015 SCC 12 , [2015] 1 S.C.R. 613 ( Loyola High School ), at paragraph 3 . [ 32 ] Following Doré , the applicant submits that the RAD’s parallel Charter jurisdiction should be implicitly folded into the subsection 110(4) analysis. Thus, even if the RAD finds that new evidence is technically inadmissible, it must go on to assess whether that evidence, if included, would raise a serious possibility of risk.

In doing so, the RAD must balance Parliament’s desire for expediency while still ensuring the applicant’s Charter right is infringed upon no more than is necessary. [ 33 ] In the present case, the RAD found that there was insufficient evidence to determine whether the discrimination the applicant would face as a result of his HIV positive status amounts to persecution.

However, that analysis was based only on the documents that were before the RPD, and had the RAD simply “turned the page”, i.e. accepted the new evidence, it would have found a plethora of evidence clearly outlining the extreme stigma faced by individuals living with HIV. An analysis of this evidence could clearly have contradicted the RPD’s determination that the applicant would not face persecution upon return to Ghana. [ 34 ] In considering whether to admit the new evidence, the RAD had an obligation to consider whether rejecting that evidence would have an impact on the applicant’s

section 7 Charter rights, and if so, the RAD was required to balance any infringement against Parliament’s intent to make the RAD a fast and expedient process. Failure to conduct this balancing amounts to an error of law. B. Respondent’s Position [ 35 ] The respondent submits that there was no error in the application of the test for admitting new evidence; the applicant has failed to show that the RAD erred in refusing to admit the new evidence. It properly applied subsection 110(4) and reasonably concluded that the evidence did not meet the statutory requirements, which is admitted by the applicant.

The applicant failed to establish that he could not have provided the new country condition evidence to the RPD and it was therefore open to the RAD to apply the statutory limitations in considering whether to admit the new evidence. [ 36 ] The respondent submits that the RAD’s

interpretation of subsection 110(4) is consistent with the Charter and that Charter values do not provide extra-legislative discretion to admit evidence that is clearly inadmissible under that provision. In support of these points, the respondent makes the following submissions. (

a) Applicant has misapprehended the function of the RAD —As a preliminary matter, the respondent submits that the applicant has mischaracterized the role of the RAD. It is not an appeal de novo , but rather it conducts a mostly, or entirely, paper-based appeal of the RPD decision where it considers potential errors in the decision of the RPD that are raised by the appellant ( Eng v. Canada (Citizenship and Immigration) , 2014 FC 711 , at paragraph 26 ; Spasoja v. Canada (Citizenship and Immigration) , 2014 FC 913 , at paragraphs 42–44 ; Dhillon v. Canada (Citizenship and Immigration) , 2015 FC 321 , at paragraph 18 ).

Moreover, the RAD is not a body that allows an appellant to provide better evidence where the evidence submitted to the RPD is foundlacking. The limitation on the acceptance of new evidence in subsection 110(4) clearly indicates that this was not the intended function. (

b) Application of subsection 110(4) by the RAD is not fundamentally inconsistent—The respondent takes issue with the applicant’sassertion that there are significant differences in the application of the Raza analysis by different RAD members. It submits that thesedecisions are consistent in that they all require an appellant to first meet the test that is set out in subsection 110(4). If that test is not met,then the inquiry ends and the evidence is not admitted (X (Re), (I.R.B.) [cited above], at paragraph 4; X (Re), (I.R.B.), at paragraphs 23–28).

Further, the Raza test is simply an acknowledgment that, even if the statutory conditionsare met, evidence may still be excluded “on one of the grounds stated” (Raza, at paragraphs 13–16). (

c) Applicant has failed to show that the Charter is engaged—The respondent submits that the applicant has failed to establish thathis

section 7 Charter rights are engaged. According to Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, atparagraph 75, in order to engage

section 7, there must be a sufficient causal connection between the state-caused effect and the prejudicesuffered by the claimant. The applicant has provided no evidence to establish that his

section 7 rights are engaged by the RAD’s refusalto admit the new evidence. Relying on Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711 (Chiarelli), atpage 736, the respondent submits that if the deportation of foreign nationals does not, in itself, engage their liberty or security of theperson interests, neither does the refusal to admit evidence pursuant to subsection 110(4) of the IRPA. Furthermore, even if

section 7 is engaged in this case, the applicant has not shown that he has been deprived of his rights in a manner thatis not in accordance with the principles of fundamental justice, as the right to an appeal is not such a principle. As the right to an appealdoes not constitute a principle of fundamental justice, the restriction on the applicant’s access to such an appeal does not violate hissection 7 rights. In general, parties seeking an appeal are required to make their cases before the first instance decision maker, and are notentitled to bring fresh evidence on appeal (Palmer et al. v.

The Queen, (SCC), [1980] 1 S.C.R. 759). The Supreme Court of Canada has found that since appeals are creatures of statute, there exists no absolute right of an appeal(Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005SCC 51, [2005] 2 S.C.R. 539, at paragraph 47). Moreover, the fact that the Federal Court can review the RAD’s decision provides afurther indication that the applicant is afforded fundamental justice, and that the RAD is not required to conduct an appeal de novo of theRPD hearing (Chiarelli, at paragraph 41; Kourtessis v.

M.N.R., (SCC), [1993] 2 S.C.R. 53, at pages 69–70; Williams v.Canada (Minister of Citizenship and Immigration), (FCA), [1997] 2 F.C. 646 (C.A.), at paragraphs 18–26; leave toappeal dismissed [1997] 3 S.C.R. xv; Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149 (F.C.A.)). (

d) New evidence does not raise a Charter issue—The respondent also submits that the new evidence in question does not provideserious or persuasive evidence that the applicant will be at risk in Ghana. Rather, the evidence provides general commentary about theexistence of stigma for persons living with HIV in Ghana. None of the documents are specific to the applicant. The situation differs fromthe case of Elezi, the decision relied on by the applicant regarding the admissibility of new evidence in a PRRA application.

In thatdecision, the Court noted [at paragraph 39] that the new evidence was “unlike country condition reports”, in that it was specific to theapplicant and tended to confirm his story. (e) Subsection 110(4) is consistent with the Charter—Further, refugee claimants do not enjoy a fundamental guarantee of a continualopportunity to provide better evidence on appeal when they had the opportunity to present their evidence to the RPD.

Requiring litigantsto put their best and most complete case before an adjudicator of first instance is a common practice before courts and tribunals and isentirely consistent with the principles of fundamental justice. The admittance of new evidence before a PRRA officer is restricted by a very similar provision, which allows a PRRA officer to refuseto admit new evidence where it fails to meet the statutory requirements. This restriction on new evidence in the PRRA context has beenfound to be compatible with

section 7 of the Charter (Doumbouya v. Canada (Citizenship and Immigration), 2007 FC 1187, 81 Admin.L.R. (4th) 129, at paragraphs 92–94; Abdollahzadeh v. Canada (Citizenship and Immigration), 2007 FC 1310, 325 F.T.R. 226, atparagraph 35; Tran v. Canada (Public Safety and Emergency Preparedness), 2010 FC 175, 361 F.T.R. 101, at paragraph 34; Mojzisik v.Canada (Minister of Citizenship and Immigration), 2004 FC 48, 245 F.T.R. 183, at paragraph 13). The ability to admit new evidence in an appeal to the RAD is an additional layer of protection in a system that was already compliantwith the Charter.

Evidence of new risk developments or new evidence supporting risk allegations already brought before the RPD maybe submitted, provided that an appellant provides a reasonable explanation as to why such evidence was not provided to the RPD. It isalso open to an applicant to seek judicial review of the RAD’s refusal to admit evidence where he believes that refusal was unreasonable.Failed refugee claimants also have an additional opportunity to raise new risks not previously considered upon removal, a process whichhas recently been found to be Charter compliant (Peter v.

Canada (Public Safety and Emergency Preparedness), 2014 FC 1073, 84Admin. L.R. (5th) 1). (

f) No Charter breach alleged—The respondent notes that the applicant has not alleged that the test set out in subsection 110(4)violates the Charter. Moreover, the applicant has not shown that there is an ambiguity in subsection 110(4) that calls for a resort toCharter values. As the Supreme Court of Canada held in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559,if a statute is unambiguous, effect should be given to the clearly expressed legislative intent, and there is no need to call upon Chartervalues in interpreting the statute (R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612, at paragraphs 62–64; R. v. Rodgers, 2006 SCC 15,[2006] 1 S.C.R. 554). (

g) Charter values do not provide extra-legislative discretion—The respondent submits that by arguing that the RAD has a “paralleljurisdiction” under the Charter, the applicant is effectively attacking subsection 110(4) without challenging its constitutional validity.Absent a direct constitutional challenge, the applicant cannot use the Charter to challenge a clear limitation on the admission of newevidence. While the applicant relies on Elezi, that case is of little assistance because in addition to the evidence being of a different nature, the

Court also found that the applicant could not reasonably have been expected in the circumstances to have presented that new evidence tothe RPD (at paragraph 43). The officer’s decision was therefore unreasonable as the applicant met the test for admission of newevidence. Thus, to the extent that the Court indicated an officer may accept evidence that is “technically inadmissible” [at paragraph 45],this finding is obiter (Foinding v. Canada (Public Safety and Emergency Preparedness), 2009 FC 500, 368 F.T.R. 134, at paragraph 34;Ghannedi v. Canada (Citizenship and Immigration), 2014 FC 879, at paragraph 19).

The Doré analysis is only engaged where there is a discretionary administrative decision. Subsection 110(4) does not provide the RADwith discretion to admit new evidence that does not meet the conditions provided for in the subsection. The applicant has not challengedthe RAD’s conclusion that he did not provide a reasonable explanation for not having brought his new evidence before the RPD.

To theextent that the applicant concedes that none of the conditions for admission provided for under subsection 110(4) were met in his case,the RAD did not have any discretion to exercise and, therefore, the analysis in Doré does not apply (see Loyola High School, atparagraph 35; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 (Baker), atparagraph 52). (

h) RAD’s decision is consistent with Charter values—The respondent submits, in any event, that the RAD’s application ofsubsection 110(4) in assessing the reasonableness of the applicant’s explanation for not having provided the evidence to the RPD isconsistent with Charter values. The RAD properly balanced these values in light of the objective of subsection 110(4), which is toprovide a fast and efficient appeal mechanism for refugee claimants (House of Commons Debates, 40th Parl., 3rd Sess., Vol. 145, No.033 (April 26, 2010), at page 1943 (Hon.

Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism); House ofCommons, Standing Committee on Citizenship and Immigration, Evidence, 40th Parl., 3rd Sess., Meeting No. 022 (Tuesday June 1,2010), at pages 13–14 (John Butt, Manager, Program Development, CIC)). The RAD is mandated to identify errors in the decisions ofthe RPD that are raised by the party seeking the appeal. It is not intended to be a hearing de novo and reconsider a claimant’s entirerefugee claim.

As such, it is reasonable that there are restrictions on the scope of evidence that may be accepted by the RAD. [37] The restriction on new evidence is also consistent with the overall goal of the IRPA to establish fair and efficient procedures thatmaintain the integrity of the Canadian refugee protection system (IRPA, paragraph 3(2)(e)) while upholding Canada’s respect for humanrights and fundamental freedoms.

The RAD must balance these objectives, and thus, the scope of its function, including the acceptanceof new evidence, is limited. [38] The RAD’s decision was also reasonable because the applicant had the opportunity to present the new evidence for considerationin his refugee claim, as the documents were available at the time of his hearing. He also had the opportunity to have them considered bythe RAD by providing a reasonable explanation for his failure to present them at the RPD.

His inability to do so was the result ofdeficiencies in his own actions. [39] The RAD also considered that the applicant was represented before the RPD by experienced counsel who made extensivesubmissions on the applicant’s risk due to his HIV positive status. It was open to the applicant to show that there had been a breach ofnatural justice based on his former counsel’s incompetence, but he failed to do so (R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, atparagraphs 26–29; Williams v. Canada (Minister of Employment and Immigration) (1994), 74 F.T.R. 34 (F.C.T.D.), at paragraph 20;Cove v.

Canada (Minister of Citizenship and Immigration), 2001 FCT 266, at paragraphs 6–8; Betesh v. Canada (Citizenship andImmigration), 2008 FC 173, at paragraphs 15–16; Ghannedi v. Canada (Citizenship and Immigration), 2014 FC 879, at paragraph 19). [40] Finally, the new evidence is not evidence of a new risk allegation that was not considered by the RPD or evidence that ispersonal to the applicant.

Rather, it consisted of additional general country condition documentation concerning the stigma for personswith HIV in Ghana; it did not demonstrate that the applicant would face risk in Ghana as a result of his HIV positive status.

It was notunreasonable for the RAD to conclude that the nature of this evidence did not warrant admitting it when considering the reasonablenessof the applicant’s explanation for not providing it earlier. [41] For all these reasons, the respondent submits that the RAD’s decision represents a reasonable and proportionate balancing of theCharter values and statutory objectives at issue. Analysis [42] The applicant’s position is, in essence, centered on the Supreme Court of Canada’s decision in Doré.

There, the Supreme Courtfaced a challenge to the constitutionality of a decision of a disciplinary body, which asserted that the decision violated the applicant’sfreedom of expression under the Charter. This raised the question of how to protect Charter guarantees and the values they reflect in thecontext of adjudicated administrative decisions. The Court stated that normally, if a discretionary administrative decision is made by anadjudicator within his or her mandate, the decision is judicially reviewed for its reasonableness.

The question was whether the presenceof a Charter issue called for the replacement of that administrative framework with the test described in The Queen v. Oakes, (SCC), [1986] 1 S.C.R. 103 (Oakes) that is traditionally used to determine whether the state has justified a law’s violation ofthe Charter as a “reasonable [limit]” under

section 1 (Doré, at paragraphs 2–3). Justice Abella stated that it was clear that in exercisingtheir discretion, administrative decision-makers must act consistently with the values underlying the grant of discretion, includingCharter values (at paragraph 24). [43] In considering these two approaches Justice Abella stated that (at paragraphs 34–36): … Today, the Court has two options for reviewing discretionary administrative decisions that implicate Charter values. The first is toadopt the Oakes framework, developed for reviewing laws for compliance with the Constitution.

This undoubtedly protects Charterrights, but it does so at the risk of undermining a more robust conception of administrative law. In the words of Prof. Evans, ifadministrative law is bypassed for the Charter, “a rich source of thought and experience about law and government will be overlooked”(p. 73). The alternative is for the Court to embrace a richer conception of administrative law, under which discretion is exercised “in light ofconstitutional guarantees and the values they reflect” (Multani, at para. 152, per LeBel J.).

Under this approach, it is unnecessary toretreat to a s. 1 Oakes analysis in order to protect Charter values. Rather, administrative decisions are always required to consider

fundamental values. The Charter simply acts as “a reminder that some values are clearly fundamental and … cannot be violated lightly”(Cartier, at p. 86). The administrative law approach also recognizes the legitimacy that this Court has given to administrative decision-making in cases such as Dunsmuir and Conway. These cases emphasize that administrative bodies are empowered, and indeed required,to consider Charter values within their scope of expertise.

Integrating Charter values into the administrative approach, and recognizingthe expertise of these decision-makers, opens “an institutional dialogue about the appropriate use and control of discretion, rather thanthe older command-and-control relationship” (Liston, at p. 100). As explained by Chief Justice McLachlin in Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, theapproach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing anadministrative decision that is said to violate the rights of a particular individual (see also Bernatchez). When Charter values are appliedto an individual administrative decision, they are being applied in relation to a particular set of facts. Dunsmuir tells us this should attractdeference (para. 53; see also Suresh v.

Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 39).When a particular “law” is being assessed for Charter compliance, on the other hand, we are dealing with principles of generalapplication. [44] By adopting the second approach and concluding that such decisions should be reviewed on the reasonableness standard, theSupreme Court acknowledged the importance of an administrative decision maker’s expertise when it comes to exercising “adiscretionary power under his or her home statute” (at paragraphs 45 and 47). [45] In order to consider Charter values, the Supreme Court set out the following framework for decision makers to apply inexercising their statutory discretion (at paragraphs 55–56): How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion?

He or she balances theCharter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives.In Lake, for instance, the importance of Canada’s international obligations, its relationships with foreign governments, and theinvestigation, prosecution and suppression of international crime justified the prima facie infringement of mobility rights under s. 6(1)(para. 27). In Pinet, the twin goals of public safety and fair treatment grounded the assessment of whether an infringement of anindividual’s liberty interest was justified (para. 19).

Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is atthe core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charterprotection with the statutory objectives. This is where the role of judicial review for reasonableness aligns with the one applied in theOakes context. As this Court recognized in RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1995] 3 S.C.R.199, at para. 160, “courts must accord some leeway to the legislator” in the Charter balancing exercise, and the proportionality test willbe satisfied if the measure “falls within a range of reasonable alternatives”.

The same is true in the context of a review of anadministrative decision for reasonableness, where decision-makers are entitled to a measure of deference so long as the decision, in thewords of Dunsmuir, “falls within a range of possible, acceptable outcomes” (para. 47). [46] Significantly, for the purposes of this matter, Doré makes it clear that the trigger for the consideration of Charter values dependson whether the decision maker is exercising discretion in reaching his or her decision. [47] In the present case, the applicant submits that the RAD has the discretion to admit evidence that is otherwise “technicallyinadmissible” as a result of its obligation to interpret the law in accordance with the Charter, pursuant to paragraph 3(3)(

d) of the IRPA.On the other hand, the respondent submits the RAD has no such discretion, and as a result, its jurisdiction to admit new evidence islimited by a strict

interpretation of subsection 110(4). [48] Therefore, in my view, this matter appears to turn on the question of whether the RAD has discretion to admit new evidence thatdoes not meet the statutory conditions in subsection 110(4). If it does have discretion, then per Doré, it is required to balance the valuesthat underpin an appellant’s

section 7 Charter rights with the statutory objectives of the IRPA. However, if it does not have discretion toadmit new evidence that does not meet the requirements of subsection 110(4), then the analysis ends there. [49]

Section 110 of the IRPA states, in part, as follows: 110 … Procedure

(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record ofthe proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Ministerand the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, writtensubmissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in therules of the Board. Time limits

(3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out inthe regulations. Evidence that may be presented

(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 thatwas not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at thetime of the rejection.

… Hearing

(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (

a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (

b) that is central to the decision with respect to the refugee protection claim; and (

c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [50] In Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, and in subsequent decisions, the Supreme Courtof Canada endorsed the “modern principle” of statutory construction (at paragraph 21): Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. (Also see R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674, at paragraph 78; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54,[2005] 2 S.C.R. 601, at paragraph 10; Bell ExpressVu Limited Partnership v.

Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 [cited above], atparagraph 26.) [51] Based on the grammatical and ordinary sense of the language in subsection 110(4), in my view, the RAD reasonably concludedthat it did not have the discretion to admit new evidence that it found did not meet one of the explicit conditions set out in that provision.The operative words of subsection 110(4) are that an appellant “may present only evidence” (emphasis added) that meets the subsequentconditions.

The use of the word “only” imports exclusivity, limiting the RAD’s consideration exclusively to that evidence that satisfiesthe factors in subsection 110(4). This is further supported by the context in which subsection 110(4) is found. Subsection 110(3)stipulates that, subject to subsections 110(3.1), (4) and (6), the RAD must proceed without a hearing and on the basis of the record thatwas before the RPD.

Subsection 110(6) permits the RAD to hold a hearing if it is of the opinion that there is new documentary evidence,as referenced in subsection 110(3), that meets the requirements of subsection 110(4), in which case the RAD will then consider whetherthat evidence raises serious credibility issues, is central to the claim and, if accepted, it would justify allowing or rejecting the claim. Thissuggests that the new evidence must first be found to be admissible.

If it is and if a hearing is sought, then the new evidence is to befurther assessed to determine if a hearing is warranted. [52] The respondent suggests that the jurisprudence in the PRRA context is applicable when interpreting subsection 110(4). In thatregard, the Raza test does not expand a PRRA officer’s ability to admit new evidence, as its factors only come into play if the officerfinds that the statutory conditions are met. The respondent argues that the same reasoning should apply to the

interpretation ofsubsection 110(4); thus, if the statutory conditions have not been met, the RAD does not have discretion to admit the evidence. [53] I am inclined to agree with the respondent that the test in Raza does not permit a PRRA officer to admit evidence that does notmeet the explicit statutory conditions for new evidence found in paragraph 113(

a) of the IRPA. Rather, that the implicit factorsarticulated by the Federal Court of Appeal are to be taken into consideration once an officer has determined that the evidence first meetsone of the explicit statutory conditions. [54] As stated in Kirindage De Silva v. Canada (Citizenship and Immigration), 2007 FC 841, 63 Imm. L.R. (3d) 245, in the context ofparagraph 113(a) (at paragraph 17): Although the PRRA process is meant to assess only evidence of new risks, this does not mean that new evidence relating to old risksneed not be considered. Moreover, one must be careful not to mix up the issue of whether evidence is new evidence under subsection133(

a) with the issue of whether the evidence establishes risk. The PRRA officer should first consider whether a document fallswithin one of the three prongs of subsection 113(a). If it does, then the Officer should go on to consider whether the documentevidences a new risk. [Emphasis in bold added; underline in original.] [55] I see no reason why that same approach would not be followed in regard to subsection 110(4). The RAD must first determine ifthe three explicit conditions set out in subsection 110(4) have been met: (1) did the evidence arise after the rejection of their claim?

Ifnot, (2) was it reasonably available, or (3) could the applicant reasonably have been expected, in the circumstances to provide theevidence? If none of these conditions are met, then, on a plain reading of subsection 110(4), the RAD has no discretion to admit the newevidence. [56] The question of whether the Raza criteria are applicable to subsection 110(4) is currently unsettled (see, for example, Singh andDenbel v. Canada (Citizenship and Immigration), 2015 FC 629, at paragraphs 40–44). However, in this case the RAD did not apply theimplicit Raza factors.

Rather, it found that it did not have discretion to accept evidence that did not fall within subsection 110(4).Accordingly, it is not necessary here to enter this debate which, by way of certified question in Singh, will be resolved by the FederalCourt of Appeal.

In any event, I do not understand Singh to suggest that the explicit statutory requirements of subsection 110(4) need notbe met. [57] Returning to the question of the discretionary nature of the RAD’s decision, I would also note that this is not a situation such asLoyola High School where the source of the discretion at issue was clear as it arose from the Minister’s refusal to grant an exemption to

a regulatory requirement.

Indeed, in that case the Supreme Court referred to its prior decision in Doré , which it described as setting out the applicable framework for assessing whether the Minister had exercised her statutory discretion in accordance with the relevant Charter protections (at paragraph 3), and then stated that (at paragraph 4): Under Doré , where a discretionary administrative decision engages the protections enumerated in the Charter — both the Charter ’s guarantees and the foundational values they reflect — the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue. [ 58 ] In Loyola High School , the challenge was not to the Minister’s statutory authority to impose curricular requirements, but rather to her discretionary decision to deny the appellant an exemption.

In that situation, the Supreme Court held that the reasonableness of the Minister’s decision depended (at paragraph 32): …. on whether it reflected a proportionate balance between the statutory mandate to grant exemptions only when a proposed alternative program is “equivalent” to the prescribed curriculum, based on the ERC Program’s goals of promoting tolerance and respect for difference, and the religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education. [ 59 ] The Supreme Court of Canada has also stated that “[t]he concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries” ( Baker , at paragraph 52 ). [ 60 ] By contrast, subsection 110(4) offers the RAD no discretion to refuse to apply its explicit admissibility requirements for new evidence.

That provision enumerates the factors that the RAD must apply, thereby determining the result based on the facts of the case. If the new evidence meets the requirements of subsection 110(4) then the RAD must accept it. Conversely, if it does not, then the RAD must reject it. While there is an element of subjectivity in assessing whether the evidence was reasonably available or if an applicant could not reasonably have been expected to have previously presented it, this is a factual assessment, it does not alter the character of the ultimate decision as to admissibility. Accordingly, in my view, the RAD’s

interpretation of subsection 110(4) was reasonable. [ 61 ] The applicant also relies on two decisions of this Court made in the PRRA context to support his argument that Charter interests can override legislative interests. The first is Elezi , which pre-dates the Federal Court of Appeal’s decision in Raza .

There, Justice de Montigny (then of this Court) commented that if Canada is to respect its international obligations and abide by the Charter, “it cannot disregard credible evidence that a person would be at risk if sent back to his or her country of origin on the sole basis that this evidence is technically inadmissible” (at paragraph 45). However, as noted by the respondent, in Elezi , Justice de Montigny actually found that the officer’s decision not to admit the applicant’s new evidence under paragraph 113 (

a) was unreasonable because it was either created after the RPD’s decision, or the applicant could not reasonably have been expected in the circumstances to have presented the evidence to the RPD (at paragraphs 39 and 43). In this regard, his comments on the admissibility of evidence that is “technically inadmissible” may properly be regarded as obiter . Further, this proposed broadening of the test under paragraph 113 (

a) of the IRPA does not subsequently appear to have been followed. [ 62 ] The applicant also relies on Sanchez , which is a stay decision. There the PRRA officer excluded a country condition document pursuant to paragraph 113 (

a) of the IRPA on the basis that it was published prior to the date of his hearing and the applicant or his counsel could have located and presented it at the RPD hearing. Justice Shore found that the mere fact that the report was published prior to the hearing did not mean that it was obvious or easily accessible to the applicant. As it was not located and included in the NDP, he queried how the applicant and his counsel could reasonably have been expected to have located it. He also found that it was an extremely relevant report from a credible source.

He stated that even if the officer may exclude a report under paragraph 113 (a), he had discretion to consider the report. On my reading of the decision, this conclusion appears to be based on Justice Shore’s comment that a PRRA officer is not limited to considering evidence submitted by the applicant, but has an obligation to conduct sufficient independent research in order to come to a proper determination. The officer had, in fact, consulted and relied on other sources.

Justice Shore found that the PRRA officer failed to properly exercise his discretion to consider credible, material evidence that supported the applicant’s allegations of risk. For this and other reasons, the applicant had demonstrated that there was a serious issue to be tried and a stay was warranted. [ 63 ] In my view, in Sanchez , Justice Shore appears to find that there was a reasonable explanation as to why the report had not been submitted previously by the applicant. On that basis, even though it pre-dated the RPD hearing, the PRRA officer could consider it as it was relevant and credible.

The officer could also have considered it as part of his independent research. As a result, I am not convinced that this case is of assistance to the applicant because his explanation for not providing the country condition documents was not accepted by the RAD, and he has not challenged the reasonableness of that finding.

Further, the reports which he sought to submit as new evidence addressed an issue upon which evidence had been tendered and considered by the RPD. [ 64 ] Thus, Elezi and Sanchez do not support a view that the RAD has discretion to consider new evidence that did not meet any of the three explicit criteria set out in subsection 110(4) nor that that legislative provision is, in these circumstances, overridden by Charter interests. [ 65 ] In this case, the RAD found that the four new documents were all produced before the applicant’s second sitting before the RPD, after he learned that he was HIV positive and after he added that ground to his refugee claim.

He was represented by experienced counsel who, in fact, did disclose some documents related to the treatment of persons with HIV in Ghana, which were considered by the RPD; his counsel also made “extensive submissions on the risks that the Appellant would face as [a HIV+ person], should he return to Ghana” (paragraph 15). The applicant did not provide any evidence in support of his explanation for not tendering the new evidence previously, being that his former counsel was incompetent in not disclosing further documentary evidence.

Further, the RAD did not accept the applicant’s explanation that he was unaware that he needed to gather information related to this issue given that both he and his counsel had provided evidence on that very issue. The RAD also found that the applicant had not provided sufficient evidence to persuade it that the new evidence was not reasonably availabl

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