REFUGEE APPEAL DIVISION
Immigration and Refugee Board
RAD File No. TBXXXXXX
Francisco Ramirez López
Appellant
APPELLANT’S MEMORANDUM
- 3 (3) (d) (g), Refugee Appeal Division Rules (SOR/202-257)
OVERVIEW
- The Appellant’s name is Francisco Ramírez López. The Appellant herein lodges this appeal to the Refugee Appeal Division (RAD) owing to errors in the decision of the Refugee Protection Division on the…..The RPD erred in fact and in law hence the decision regarding the Appellant’s refugee claim should be reconsidered.
PART I: THE ISSUES
- Intervention of the RAD is warranted in the case for two reasons:
- The Appellant has new and compelling evidence;
- The Appellant should be found to be a Convention Refugee or a person in need of protection, based on the new evidence presented before the RAD.
PART II: THE LAW AND ARGUMENT
- Admissibility of New Evidence
- The Appellant requests the Refugee Appeal Division to admit the following as new evidence since the same meets the requirements under Section 110 (4) of the Immigration and Refugee Act (IRPA). The preceding section on evidence that may be presented to the Refugee Appeal Division provides thus;
“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.”
- In a Decision TB4-05778, a panel in the re-determination of an appeal, stated thus;
“[16] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
[17] It is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant”
- In the Application of the preceding section, the panel further stated;
[18] Section 110(4) establishes a disjunctive test. The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in her circumstances, to have presented the evidence to the RPD prior to the rejection of her claim. If she could not have been expected to do so, the evidence meets the requirements of the section.
[19] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.
[20] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD – either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD.
[21] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD’s view, a document’s “newness” cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence. Old evidence remains old evidence, even if it is placed in a new document with a recent date.”
- In light of the preceding, the Appellant submits that the new evidence sought to be introduced occurred after the rejection of the refugee claim and was not reasonably available at the time. Precisely, the letter dated April 14, 2023 sent to the Appellant by the sister was not initially available since the sister in question was too afraid to put anything in writing. She, however, changed her mind after learning that her brother’s refugee claim had been denied.
- Moreover, the pictorial evidence that the Appellant obtained from the sister showing the crime scene of the nephew was only available now since the murder occurred recently. Further, the brief news article dated April 18, 2023, from El Sol de Irapuato describing the murder of the Appellant’s nephew is recent.
- Preliminary Issue: Oral Hearing
- The Appellant also urges the Refugee Appeal Division to hold an oral hearing of this matter under Section 110 (6) of the IRPA. Section 110(6) of the IRPA states the following:
“The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred 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.”
- Further in Decision TB4-05778, a panel in the re-determination of an appeal, stated thus;
“In addition to credibility and relevance, the factors in Raza include “newness” and “materiality.” Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section110 (6) of the IRPA, which describes when the RAD may hold an oral hearing.”
- Moreover, in Decision No. MB4-00066, a panel chaired by Normand Leduc stated as follows;
“[23] Pursuant to subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, there is new evidence that is admissible and that meets the following three criteria: 1) it raises a serious issue with respect to the credibility of the person; 2) it is central to the decision with respect to the refugee protection claim; and 3) if accepted, it would justify allowing or rejecting the refugee protection claim.
[24] Since the provision preliminary to this provision was not met, in that I did not admit any new documents into evidence, I conclude that a hearing may not be held in this appeal.”
- Also, in Decision MB8-00025, the RAD, in a panel chaired by Jo-Anne Pickel in stating the basis of denial or grant of an oral hearing stated thus;
“[13] Mr. XXXX request for an oral hearing is denied as the statement that I have admitted as new evidence does not meet these conditions for the holding of an oral hearing found in s. 110(6) of the IRPA. In particular, the determinative issue in this case centers on whether Mr. XXXX is excluded from protection due to his permanent resident status in Brazil. Therefore, even if accepted, the statement would not justify allowing or rejecting his claim since it relates solely to his risk in Haiti.”
- The new evidence sought to be introduced by the Appellant meets the preceding criteria since it raises issues with regard to the credibility of the Appellant who is the main subject of the appeal. His life is evidently at risk and this Refugee Appeal Division should make a decision that is geared towards safeguarding his life.
- Moreover, the new evidence sought to be admitted is significant with regard to the Appellant’s refugee protection claim. It demonstrated the gravity of the situation and serves as persuasive evidence for a favorable decision to be made. Moreover, if the new evidence sought to be introduced by the Appellant is accepted, it would fully justify the allowance or rejection of the refugee protection claim. This is because it is a demonstration of the real situation at hand which is that the Appellant’s life and that of his family are at grave risk hence the need for protection.
PART III: REMEDY SOUGHT
- The Appellant thus wants the RAD to make the following decision:
- That the appeal be allowed, and that the RAD finds the Appellant(s) to be a Convention refugee or a person in need of protection.
- That the appeal be allowed and that the matter be referred to the RPD for re-determination.
- Any such relief as the Refugee Appeal Division deems just.
Should the Refugee Appeal Division be unable to substitute a decision without an oral hearing,
the Appellant requests that the Division hold a hearing on the basis of the new evidence
submitted, pursuant to sections 110(4) and 110(6) of the IRPA;
ALL OF WHICH IS RESPECTFULLY SUBMITTED at TORONTO this 30th day of April 2023
_______________________
- Lawyer
Counsel for the Appellant
………………… …………………..
Appellant’s Signature Date
……………….. ……………….
Prassana Balasundaram Signature Date
REFUGEE APPEAL DIVISION
Immigration and Refugee Board
RAD File No. TBXXXXXX
Francisco Ramirez López
Appellant
APPELLANT’S MEMORANDUM
- 3 (3) (d) (g), Refugee Appeal Division Rules (SOR/202-257)
OVERVIEW
- The Appellant’s name is Francisco Ramírez López. The Appellant herein lodges this appeal to the Refugee Appeal Division (RAD) owing to errors in the decision of the Refugee Protection Division on the…..The RPD erred in fact and in law hence the decision regarding the Appellant’s refugee claim should be reconsidered.
PART I: THE ISSUES
- Intervention of the RAD is warranted in the case for two reasons:
- The Appellant has new and compelling evidence;
- The Appellant should be found to be a Convention Refugee or a person in need of protection, based on the new evidence presented before the RAD.
PART II: THE LAW AND ARGUMENT
- Admissibility of New Evidence
- The Appellant requests the Refugee Appeal Division to admit the following as new evidence since the same meets the requirements under Section 110 (4) of the Immigration and Refugee Act (IRPA). The preceding section on evidence that may be presented to the Refugee Appeal Division provides thus;
“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.”
- In a Decision TB4-05778, a panel in the re-determination of an appeal, stated thus;
“[16] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
[17] It is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant”
- In the Application of the preceding section, the panel further stated;
[18] Section 110(4) establishes a disjunctive test. The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in her circumstances, to have presented the evidence to the RPD prior to the rejection of her claim. If she could not have been expected to do so, the evidence meets the requirements of the section.
[19] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.
[20] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD – either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD.
[21] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD’s view, a document’s “newness” cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence. Old evidence remains old evidence, even if it is placed in a new document with a recent date.”
- In light of the preceding, the Appellant submits that the new evidence sought to be introduced occurred after the rejection of the refugee claim and was not reasonably available at the time. Precisely, the letter dated April 14, 2023 sent to the Appellant by the sister was not initially available since the sister in question was too afraid to put anything in writing. She, however, changed her mind after learning that her brother’s refugee claim had been denied.
- Moreover, the pictorial evidence that the Appellant obtained from the sister showing the crime scene of the nephew was only available now since the murder occurred recently. Further, the brief news article dated April 18, 2023, from El Sol de Irapuato describing the murder of the Appellant’s nephew is recent.
- Preliminary Issue: Oral Hearing
- The Appellant also urges the Refugee Appeal Division to hold an oral hearing of this matter under Section 110 (6) of the IRPA. Section 110(6) of the IRPA states the following:
“The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred 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.”
- Further in Decision TB4-05778, a panel in the re-determination of an appeal, stated thus;
“In addition to credibility and relevance, the factors in Raza include “newness” and “materiality.” Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section110 (6) of the IRPA, which describes when the RAD may hold an oral hearing.”
- Moreover, in Decision No. MB4-00066, a panel chaired by Normand Leduc stated as follows;
“[23] Pursuant to subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, there is new evidence that is admissible and that meets the following three criteria: 1) it raises a serious issue with respect to the credibility of the person; 2) it is central to the decision with respect to the refugee protection claim; and 3) if accepted, it would justify allowing or rejecting the refugee protection claim.
[24] Since the provision preliminary to this provision was not met, in that I did not admit any new documents into evidence, I conclude that a hearing may not be held in this appeal.”
- Also, in Decision MB8-00025, the RAD, in a panel chaired by Jo-Anne Pickel in stating the basis of denial or grant of an oral hearing stated thus;
“[13] Mr. XXXX request for an oral hearing is denied as the statement that I have admitted as new evidence does not meet these conditions for the holding of an oral hearing found in s. 110(6) of the IRPA. In particular, the determinative issue in this case centers on whether Mr. XXXX is excluded from protection due to his permanent resident status in Brazil. Therefore, even if accepted, the statement would not justify allowing or rejecting his claim since it relates solely to his risk in Haiti.”
- The new evidence sought to be introduced by the Appellant meets the preceding criteria since it raises issues with regard to the credibility of the Appellant who is the main subject of the appeal. His life is evidently at risk and this Refugee Appeal Division should make a decision that is geared towards safeguarding his life.
- Moreover, the new evidence sought to be admitted is significant with regard to the Appellant’s refugee protection claim. It demonstrated the gravity of the situation and serves as persuasive evidence for a favorable decision to be made. Moreover, if the new evidence sought to be introduced by the Appellant is accepted, it would fully justify the allowance or rejection of the refugee protection claim. This is because it is a demonstration of the real situation at hand which is that the Appellant’s life and that of his family are at grave risk hence the need for protection.
PART III: REMEDY SOUGHT
- The Appellant thus wants the RAD to make the following decision:
- That the appeal be allowed, and that the RAD finds the Appellant(s) to be a Convention refugee or a person in need of protection.
- That the appeal be allowed and that the matter be referred to the RPD for re-determination.
- Any such relief as the Refugee Appeal Division deems just.
Should the Refugee Appeal Division be unable to substitute a decision without an oral hearing,
the Appellant requests that the Division hold a hearing on the basis of the new evidence
submitted, pursuant to sections 110(4) and 110(6) of the IRPA;
ALL OF WHICH IS RESPECTFULLY SUBMITTED at TORONTO this 30th day of April 2023
_______________________
- Lawyer
Counsel for the Appellant
………………… …………………..
Appellant’s Signature Date
……………….. ……………….
Prassana Balasundaram Signature Date
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