Olowolaiyemo v. Canada (Minister of Citizenship and Immigration), 2015 FC 895

• Judge: Gascon, J.
• Court: Federal Court (Canada)
• Case Date: July 13, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 895;[2015] F.T.R. TBEd. JL.059

Olowolaiyemo v. Can. (M.C.I.), [2015] F.T.R. TBEd. JL.059

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. JL.059

Olatunji Agboola Olowolaiyemo (a.k.a. Olatunji Agbool Olowolaiyemo) (applicant) v. Minister of Citizenship and Immigration (respondent)

(IMM-7767-14; 2015 FC 895)

Indexed As: Olowolaiyemo v. Canada (Minister of Citizenship and Immigration)

Federal Court

Gascon, J.

July 22, 2015.

Summary:

Olowolaiyemo, a citizen of Nigeria, submitted a claim for refugee protection based on his bi-sexuality. The Refugee Protection Division refused his claim for lack of credibility. Olowolaiyemo appealed to the Refugee Appeal Division (RAD), and presented documentary evidence: (i) a statutory declaration from a male (Johnson) corroborating that he was dating Olowolaiyemo while the latter was in a relationship with a female; (ii) a sworn affidavit submitted by the sister of Olowolaiyemo's previous male partner. The RAD refused to accept the evidence, finding that the affidavit failed to meet the requirements of s. 110(4) of the Immigration and Refugee Protection Act, and that the declaration, while it satisfied the statutory requirements, did not meet the factors set out in Raza v. Canada (Minister of Citizenship and Immigration) (2007) (Fed. C.A.). Olowolaiyemo applied for judicial review. He contended that the RAD unreasonably interpreted s. 110(4) and unreasonably applied the Raza factors.

The Federal Court allowed the application. The RAD erred in its findings regarding the requirements of s. 110(4) and the conditions governing the admissibility of new evidence in the context of a RAD appeal. The Court referred the matter back to the RAD for reconsideration of admissibility of the new evidence and for redetermination on the merits by a differently constituted panel.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - Section 110(4) of the Immigration and Refugee Protection Act provided that the Refugee Appeal Division (RAD) "may accept documentary evidence" but that an appellant "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." - The Federal Court stated that "[t]he wording of the English version may arguably suggest that the provision in fact refers to three different options and that the second one should be broken down into two independent possibilities. However, the French version of subsection 110(4) makes it clear that the last two possibilities described at the end of the provision are alternatives to one another rather than two distinct options: ... Given the use of the word 'or', there can be no doubt that the test set out in subsection 110(4) is disjunctive, not conjunctive. ... This means that new evidence may be accepted by the RAD either if it arose after the rejection of the claim or if it was not reasonably available or the person could not have been expected to have presented it at the time of the rejection. It therefore suffices that an appellant's new evidence meet one of these two elements for the RAD to consider accepting it. Conversely, in order for the RAD to conclude that a new piece of evidence does not meet the statutory requirements of subsection 110(4), it must consider whether the evidence fails to meet both of the conditions laid out in the provision. I observe that, even if an appellant's evidence falls into one of the two categories of evidence covered by subsection 110(4), the RAD still has the discretion to accept it or not." - See paragraphs 17 to 20.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - Section 110(4) of the Immigration and Refugee Protection Act provided that the Refugee Appeal Division (RAD) "may accept documentary evidence" but that an appellant "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 the present case, the applicant submitted that the RAD committed an error, as it viewed the test in s. 110(4) as conjunctive rather than disjunctive, and did not consider the first part of the test - The Federal Court agreed - The RAD only considered whether the applicant's additional evidence (a statutory declaration and an affidavit) was not reasonably available or could not have been expected to be presented at the time of the rejection of the claim before concluding that the declaration met the statutory requirements and the affidavit did not - At no point in the decision did the RAD consider whether the two new pieces of evidence "arose after the rejection of the claim" - Its analysis ignored the first part of the test under s. 110(4) - The error was compounded by the fact that both the affidavit and the declaration were, on their face, clearly dated after the Refugee Protection Division rendered its decision - See paragraph 21.

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - [See first Aliens - Topic 1331 ].

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - The Federal Court, in allowing the present judicial review application, held that it was unreasonable for the Refugee Appeal Division (RAD) "to merely import, and automatically transplant" the criteria from Raza v. Canada (Minister of Citizenship and Immigration) (2007) (Fed. C.A.) in assessing the admissibility of new evidence under s. 110(4) of the Immigration and Refugee Protection Act - The Raza factors, developed in the context of pre-removal risk assessment applications (PRRA), included consideration of the newness, credibility, relevance and materiality of the evidence, and were not necessarily applicable to the admissibility of new evidence in the context of a RAD appeal - A PRRA officer's role did not include revisiting the Refugee Protection Division's (RPD) factual findings - The role of the RAD on appeal materially differed from that of a PRRA officer - Unlike a PRRA officer, the RAD was a quasi-judicial administrative tribunal, with the power to set aside the RPD's decision and substitute a determination that, in its opinion, should have been made - The different context was an important distinguishing factor - "The criteria developed in Raza cannot simply be applied in the context of an appeal before the RAD as they may not give the appellant the full-fledged appeal to which he or she is entitled under subsection 110(4)." - See paragraphs 25 to 29.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - In the present case, the Refugee Appeal Division (RAD) applied the factors set out in Raza v. Canada (Minister of Citizenship and Immigration) (2007) (Fed. C.A.). and, relying on "materiality", concluded that the statutory declaration presented by the appellant, while it satisfied the statutory requirements, did not constitute "new" evidence pursuant to s. 110(4) of the Immigration and Refugee Protection Act - The Federal Court, in allowing the applicant's judicial review application, concluded that it was unreasonable for the RAD to import and strictly apply the Raza test in interpreting s. 110(4) and in refusing to admit the evidence on that basis - The RAD did not consider whether or how the Raza factors should be adapted in the context of new evidence submitted on an appeal - The Raza factors were developed in the context of pre-removal risk assessment applications (PRRA) - By failing to appreciate that its role was different from that of a PRRA officer and to take a flexible and more generous approach to the acceptance of additional evidence, the RAD did not give the appellant the appeal he was entitled to - The new evidence dealt with a primary issue in the refugee claim - The RAD erred in refusing to admit the new evidence - "Because I am unable to conclude whether the RAD's decision would have been different if the new evidence had been admitted, the application for judicial review must be allowed and the decision must be sent back for redetermination." - See paragraphs 30 to 35.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See first Aliens - Topic 1331 ].

Aliens - Topic 4071

Practice - Judicial review and appeals - Fresh evidence - [See second Aliens - Topic 2 , and first Aliens - Topic 1331 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - [See first Aliens - Topic 2 ].

Statutes - Topic 2414

Interpretation - Interpretation of words and phrases - Disjunctive words or phrases - [See both Aliens - Topic 2 ].

Cases Noticed:

Raza v. Canada (Minister of Citizenship and Immigration) et al. (2007), 370 N.R. 344; 2007 FCA 385, refd to. [para. 4].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 10].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 10].

National Gallery of Canada v. Canadian Artists' Representation et al. (2014), 458 N.R. 233; 2014 SCC 42, refd to. [para. 10].

Singh v. Canada (Minister of Citizenship and Immigration) (2014), 466 F.T.R. 187; 2014 FC 1022, refd to. [para. 10].

Khachatourian v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 55; 2015 FC 182, refd to. [para. 10].

Ngandu v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 158; 2015 FC 423, refd to. [para. 10].

Ching v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. JN.037; 2015 FC 725, refd to. [para. 10].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 11].

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 459 N.R. 367; 2014 FCA 113, refd to. [para. 11].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 12].

Singh (Gurinder) v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 428; 2012 FC 855, refd to. [para. 12].

Iyamuremye et al. v. Canada (Minister of Citizenship and Immigration) (2014), 455 F.T.R. 201; 2014 FC 494, refd to. [para. 25].

Ghannadi v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 376; 2014 FC 879, refd to. [para. 25].

Denbel v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. MY.061; 2015 FC 629, refd to. [para. 25].

Sow v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AP.016; 2015 FC 295, refd to. [para. 28].

Geldon v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AP.009; 2015 FC 374, refd to. [para. 28].

Awet et al. v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. JL.004; 2015 FC 759, refd to. [para. 31].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 38].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 110(1), sect. 110(3), sect. 110(4) [para. 16].

Counsel:

Dov Maierovitz, for the applicant;

Sybil Thompson, for the respondent.

Solicitors of Record:

True North Settlement Services, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on July 13, 2015, before Gascon, J., of the Federal Court, who delivered the following judgment and reasons, dated July 22, 2015.