New evidence on RAD appeal — s 110(4)
Overview
On an appeal to the Refugee Appeal Division (RAD), new evidence may only be introduced if it satisfies the requirements of IRPA s 110(4): the evidence must have (a) arisen after the RPD hearing, or (b) not been reasonably available at the RPD hearing, or (c) not been reasonably expected to be presented at the RPD hearing. Evidence that was available and could have been presented at the RPD but was not — through oversight, strategy, or delay — will generally not be admitted. This is a stricter standard than the general admissibility rules at first-instance hearings.
Legal basis
- IRPA s 110(4) — the new evidence rule: an appellant may only present evidence that arose after the RPD hearing, was not available before the RPD hearing, or could not reasonably have been expected to be presented at the RPD hearing
- IRPA s 110(6) — the RAD may hold a hearing only if it has admitted new evidence under s 110(4) that raises a serious issue of credibility
How it works
The three conditions under s 110(4)
1. Evidence that arose after the RPD hearing
Documents or events that post-date the RPD hearing automatically satisfy this condition. Examples include:
- New country condition reports published after the RPD decision
- Documents showing that the claimant's family members were harmed after the RPD hearing
- Evidence of activities in Canada (sur place grounds) that occurred after the RPD decision
2. Evidence not reasonably available before the RPD hearing
Evidence that existed before the RPD hearing but was not available to the claimant — typically because it was in a country the claimant cannot access, because it was held by a third party, or because relevant events in the country of origin were not documented at the time.
3. Evidence that could not reasonably have been expected to be presented
This condition is the most contextual. Evidence may meet this condition where the significance of the evidence was not apparent at the time of the RPD hearing (e.g., a document whose relevance only became clear after the RPD's reasoning was disclosed in its decision), or where the claimant had a legitimate reason for not presenting it at first instance.
Credibility and relevance
Even if evidence meets one of the three conditions, it must also be:
- Credible: the RAD must be satisfied the evidence is genuine and reliable
- Relevant: the evidence must be pertinent to a matter at issue in the appeal
Country condition documents post-RPD
The RAD regularly admits updated National Documentation Package (NDP) documents published after the RPD decision, on the basis that they arose after the RPD hearing. This is significant because country conditions can change rapidly and the RAD is expected to assess the risk at the time of the RAD's own decision, not only at the time of the RPD hearing.
The s 110(6) hearing trigger
If the RAD admits new evidence under s 110(4), it may hold a hearing only if the new evidence raises a serious issue of credibility that cannot be fairly resolved on the record. This is a high bar — the RAD does not convene hearings merely because new evidence was admitted. Most RAD appeals are decided on the written record even where new evidence is admitted.