 
RAD.2 5.02  (June 23, 2014 ) 
 
 
Immigration and  
Refugee Board of Canada  
 
Refugee Appeal Division  
 Commission de l’immigration  
et du statut de réfugié du Canada  
 
Section d’appel des réfugiés  
 
 
 
 
RAD File No. / N° de  dossier de la SAR  : TB5 -11177  
 
 Private Proceeding / Huis clos  
 
 
Reasons and decision  Motifs et décision  
 
 
Person(s) who is(are)  
the subject of the appeal   XXXX XXXX XXXX   Personne(s) en cause  
   
   
Appeal considered / heard at  Toronto, Ontario  Appel instruit à  
   
   
Date of decision  February 9, 2016  Date de la décision  
   
   
Panel  XXXXXXXXXXXXXX  Tribunal  
   
   
   
Counsel for the person(s) who 
is(are)the subject of the appeal  XXXXXXXXXXXX  
Barrister and Solicitor  Conseil(s) du (de la/des)   
personne(s) en cause  
   
   
Designated Representative(s)  N/A  Représentant(e)(s) désigné(e)(s)  
   
   
Counsel for the Minister  N/A  Conseil du ministre  
   
 
 
2016 CanLII 107244 (CA IRB)
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 REASONS AND DECISION  
[1] XXXX XXXX  (the Appellant), a citizen of Uganda, appeals a decision of the Refugee 
Protection Division (RPD) denying his claim for refugee protection. He has submitted new 
evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set  
aside the determination of the RPD and either find him to be a Convention refugee or to return the 
matter to the RPD for redetermination.  
DETERMINATION  
[2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee 
Protection Act  (IRPA), the RAD refers the matter to the Refugee Protection Division for 
redetermination by a differently  constituted panel.  
Background  
[3] The Appellant alleged before the RPD that he is gay and faces persecution in his country 
because of his sexual orientat ion  
[4] The Appellant’s application for refugee protection was heard on September 4, 2015. By a 
decision of September 25, 2015, the RPD rejected the claim. The panel found that “the evidence 
in areas crucial to the claim lacks credibility” and that the XXXXXX ant was not “a reliable witness in 
the proceeding or at times relevant to his claim.”1 
[5] The Appellant submits that he was denied natural justice and procedural fairness because 
of incompetence of his counsel before the RPD. He also argues that the RPD made erroneous 
credibility and implausibility findings. The Appellant asks the RAD to admit new evidence in 
support of his appeal.  
                                                 
 
1 RPD ’s Reasons, para. 2.  
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 ANALYSIS  
What is the Role of the RAD?  
[6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not 
specify  the standard by which the RAD is to review the decision of the lower tribunal.  
[7] The Appellant submits that the RAD must undertake an independent analysis of the 
evidence, and read the RPD’s reasons with a view to determining whether they are persuasive.  
[8] In another decision, this panel considered at some length the legislation and jurisprudence 
concerning the role of the RAD.2 It assessed the nature of a RAD appeal and addressed the scope 
and degree of deference to be shown to findings of the RPD. The panel  reached the following 
conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD 
appeal.  
The RAD’s Approach  
[9] The RAD will take the following approach in considering an appeal against a decision of 
the RPD. It will asses s all of the evidence, both that in the RPD’s record and any admissible new 
evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant 
and, where applicable, the Respondent.  
[10]   Where the proceeding is a true appeal  – that is, where there is no admissible new evidence  
– the RAD will consider the decision of the RPD, the submissions in respect of that decision, and 
determine whether the RPD’s determination is wrong. As a true appeal is founded on the record, 
the RAD must c onduct an independent assessment of the evidence in that record in order to 
determine the appeal.  
[11]  Where an appeal includes admissible new evidence that speaks to an error in the RPD’s 
decision, it is a hybrid appeal, where the RAD must consider the RPD’s reasons in light of the 
new evidence, which may establish that the decision of the RPD is wrong.3 
                                                 
 
2 X (Re),  2015 CanLII 19235 (CA IRB).  
3 Reference to this type of evidence is made in XXXXX, XXXXXXXXX  v. M.C.I.  (F.C., no. IMM -6711 -13), XXXXX, October 
28, 2014  , 2014 FC 1022, para. 55.  
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[12]  Where an appeal presents admissible new evidence which establishes a new, changed, or 
heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited 
de novo  appeal. In some such cases, the decision of the RPD may be less relevant in light of the 
new evidence  – that is, the new evidence establishes a risk or degree of risk, or other potentially 
determinative matter not cons idered by the RPD. Unlike a true de novo  proceeding, however, the 
RAD will not ignore the RPD’s record or the findings of the lower tribunal, as these may remain 
relevant to the appeal.  
[13]  The RAD will recognize and respect findings which the RPD was in an ad vantageous 
position to make, which will normally include credibility findings and other findings of fact. 
Where such deference is to be shown, the RAD will not intervene unless the RPD’s reasoning 
process is not comprehensible or the outcome of that proces s is not based on and supported by the 
evidence.  
[14]  Where the RPD’s determination is entirely based on findings which warrant deference  – 
such as an overall lack of credibility, based on oral testimony  – the RAD will, having conducted 
its own assessment of the evidence, consider whether the RPD’s reasoning process is 
comprehensible and whether the determination is based on and supported by the evidence.  
[15]  On matters where the RPD has no advantage, the RAD will show no deference and will 
apply a standard of cor rectness, engaging in its own analysis of the evidence and reaching its own 
conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not 
agree with that of the RPD, the RAD will substitute its own finding and determination  or, if it is 
unable to substitute, will refer the matter back to the RPD for redetermination.  
The RPD’s Decision  
[16]  The Appellant argues that he was denied natural justice in the RPD proceeding as a result 
of the RPD’s rejection of timely documents and also because of his counsel’s incompetence or 
negligence.  
[17]  Post -hearing document s: The Appellant’s refugee claim was he ard on September 4, 2015. 
On September 23, 2015, he submitted additional documents to the RPD, including an affidavit 
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 attesting to the Appellant’s sexual orientation and a letter from a friend in Uganda, which also 
speaks to the Appellant’s sexual orientat ion.4 
[18]  These documents were not considered by the RPD. Instead, they were returned to the 
Appellant with a cover letter dated September 30, 2015. That letter lists the documents submitted 
by the Appellant and explains that “the said documents are returned h erewith as the decision of 
the RPD in this matter has taken effect before the same was received by the decision maker.”5 
[19]  The documents in question were stamped as received by the RPD on September 23. The 
RPD’s decision was signed September 25, and sent wit h a Notice of Decision dated September 
30. It is clear that the RPD received the Appellant’s additional disclosure two days before the 
decision was signed. The RPD’s letter to the Appellant suggests that these documents, though 
received by the RPD, were no t given to the decision -maker before the decision was signed on 
September 25.  
[20]  The RPD has a duty to receive evidence at any time until a decision is rendered. If the 
RPD determines that the evidence should or could not be considered, it must set out its re asons 
for such a determination.6 
[21]  The post -hearing evidence rejected by the RPD was relevant and material to the core of 
the Appellant’s refugee claim. There is a duty on counsel to ensure that post -hearing documents 
not expected by the Board are indeed rec eived.7 Counsel discharge d that duty; it is clear from the 
RPD’s own stamp on the evidence that the documents were received on September 23. However, 
two days later they had apparently not been delivered to the RPD member in the same building. 
The RPD did not discharge its duty to receive evidence. As a result, material evidence was not 
before the panel, and the Appellant was denied a full and fair hearing of his refugee claim.8 
                                                 
 
4 Appellant’s Record, Pages 26 -31.  
5 Appellant’s Record, Page 32.  
6 XXXXXX, XXXXX MD  v. M.C.I.  (F.C., no. IMM -3636 -14), XXXXX, February 5, 2015 ,  2015 FC 144 , paras. 41 -56.  
7 XXXXX, XXXXXXXXXXX  v. M.C.I.  (F.C.T.D., no. IMM -12-97), XXXX, December 12, 1997 , para. 6.  
8 XXXXXXXXXXXXX, XXXXXXXXXXXX  v. M.C.I.  (F.C.T.D., no.  IMM -1816 -95), XXXXXXX, July 29, 1996. Reported:  
XXXXXXXXXXXXX  v. Canada (Minister of Citizenship and Immigration ) (1996), 34 Imm. L.R. (2d) , 307 , [1996] F.C.J. No. 
102 5, para. 5.   
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 [22]  The RPD erred in failing to consider the Appellant’s post -hearing evidence. Thi s failure 
led to a denial of natural justice, and this error alone is sufficient to warrant the granting of this 
appeal.  
[23]  Counsel incompetence : The Appellant submits that he suffered a further breach of natural 
justice at the hands of his counsel before the  RPD. He provided three corroborating documents to 
that counsel either before or during his hearing, and counsel failed to provide these to the RPD.  
[24]  In a recent decision,9 the Federal Court set out a three -part test for establishing that 
counsel incompeten ce resulted in a violation of procedural fairness. The Appellant must show that 
the alleged actions, or lack therefore, constituted incompetence. He must show that there was a 
miscarriage of justice in the sense that, but for the alleged misconduct, there is a reasonable 
probability that the outcome of his refugee proceeding would have been different. He must also 
give the counsel in question notice of these allegations and an opportunity to respond.  
[25]  The Appellant submits that the omitted letters were mater ial and relevant to his claim, and 
the RAD agrees. The RAD also accepts the argument that, but for counsel’s negligence, there is a 
reasonable probability that the outcome of his claim would have been different. Here the RAD 
has considered that the Appella nt’s refugee claim was decided not only without these documents, 
but without the documents rejected by the RPD, as discussed above. A significant volume of 
material and relevant evidence was simply not in the record upon which the RPD made its 
decision.  
[26]  The Appellant gave former counsel notice of these allegations, and has provided the RAD 
with that notice as well as former counsel’s responses.10 Former counsel denied knowledge of the 
letter from Mr. XXXX ; she claimed that she tried to submit a letter from XXXX  XXXX XXXX 
XXXX XXXX XXXX  but was refused by the RPD; and she did not remember what happened 
with the third letter, from Mr. XXXX . 
[27]  The Appellant points out that he referred to the letter of Mr. XXXX  during the hearing: “A 
friend of mine, XXXX , he wrote for me a support letter, sir.” The Appellant also gave Mr. XXXX  
                                                 
 
9 XXXX, Huo Jun  v. M.C.I.  (F.C., no. IMM -3666 -14), Annis, October 22, 2015, 2015 FC 1189, para. 16. 
10 Appellant’s Record, Pages 50 -61.  
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 last name.11 Even if the Appellant had forgotten to provide counsel with that letter, his testimony 
should have caused her to inquire about the document.  
[28]  Former counsel recalls trying to submit the XXXX  letter in the hearing; however, there is 
nothing in the audio recording to indicate that this occurred.  
[29]  The letter from Mr. XXXX  is referred to in a cover letter from former counsel to the RPD: 
“Enclosed, pl ease find a support letter and passport page of the claimant’s friend, XXXX  
XXXX .”12 However, neither that letter nor the passport page was enclosed. The RAD notes that 
the cover letter has hand -written question marks above the words “support letter” and “p assport 
page;” the Appellant submits that this shows someone at the RPD noticed the missing documents, 
though apparently did nothing in response. It is unfortunate that neither counsel, nor the panel, 
nor RPD administrative staff noticed that the evidence referred to in the cover letter was entirely 
missing.  
[30]  Having considered the evidence, the RAD finds, on a balance of probabilities, that former 
counsel’s conducted amounted to incompetence. It is evident that she had the XXXX  letter and 
the XXXX  letter and  failed to disclose them; even if she did not have the XXXX  letter, she had 
reason to inquire into it after the XXXXXXXXX testified to its existence. The RAD finds that this 
incompetence resulted in a violation of procedural fairness, as key corroborating documents were 
not presented to the RPD.  
[31]  The XXXXXXXXX was twice denied natural justice and procedural fairness: once when former 
counsel failed to provide the RPD with documentary evidence the Appellant had given her, and 
again when the RPD failed to cons ider evidence that was presented prior to the rejection of the 
Appellant’s refugee claim. As such, the RPD proceeding was unfair to the Appellant and the 
resulting determination must be set aside.  
[32]  Credibility : The Appellant also challenges the RPD’s findin gs with respect to his 
credibility. As this matter must be re -heard by the RPD, it is not necessary for the RAD to 
consider these arguments. The RAD does note, however, that the RPD’s general credibility 
                                                 
 
11 RPD ’s Record, Audio Recording, 1:34 -40-1:36:20.  
12 RPD ’s Record, Page 139.  
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 finding appears to rest almost entirely on a single,  rather wobbly, leg: that the Appellant provided 
some false information when applying for a Canadian visa to escape from Uganda.13 The 
Appellant points to the audio recording to show that in fact the RPD misunderstood or 
misconstrued his evidence with respe ct to part of the visa application.  
[33]  The RPD also briefly touched on the fact that the XXXXXXXXX did not immediately claim 
refugee status at the airport upon arrival, and then engaged in a somewhat lengthy discussion of 
various pieces of evidence which were , apparently, neither helpful nor harmful to the Appellant’s 
credibility. Somehow the RPD then concluded that the XXXXXXXXX’s “oral testimony and written 
allegations with connection to [the culminating incident in Uganda, an alleged beating] have been 
foun d not to be reliable in and of themselves,” although no such finding was actually made.14 In 
fact, the RPD previously stated that the incident “could be true and is in general sense plausible.”  
[34]  The RPD also engaged in circular reasoning. It found that the XXXXXXXXX’s false visa 
information negatively affected his credibility; it then considered his explanation that he had used 
an agent to obtain the visa, and that the agent provided the false information. However, the RPD 
did not believe that an agent had b een used “in view of the credibility findings herein.”15 In other 
words, the RPD made a negative credibility finding because of falsehoods in the visa application, 
and then rejected the Appellant’s explanation that an agent was responsible  – because the 
claimant lacked credibility as a result of those falsehoods. To be fair, the “credibility findings 
herein” may have also included the Appellant’s failure to immediately claim at the airport, but 
this does not, unfortunately, break the logical circle with resp ect to the false information in the 
visa.  
[35]  Even if the Appellant had not established that the RPD proceeding was unfair, the RAD 
would allow this appeal on the basis of the RPD credibility findings, which are not 
comprehensible.  
 
 
                                                 
 
13 RPD ’s Reasons, paras. 4 -6. 
14 RPD ’s Reasons, para. 16.  
15 RPD ’s Reasons, para. 9.  
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CONCLUSION  
[36]  The Appellant asks the RAD to substitute its own determination that he is a Convention 
refugee. In the RAD’s view, this is not possible. The RPD hearing was tainted by procedural 
unfairness, and thus the RPD record has limited evidentiary value for the RAD . The RPD, which 
is in a better position than the RAD to determine credibility, did not provide a comprehensible 
assessment of credibility. Section 111(2) of the IRPA appears to suggest that the RAD should not 
re-hear evidence already heard by the RPD, and  thus it is not open to the RAD to convene an oral 
hearing to engage in an entire re -examination of the Appellant’s credibility.  
[37]  The Appellant asks the RAD to admit new evidence in support of this appeal. As the RAD 
has already determined that this matter must be re -heard by the RPD, it is not necessary to 
consider the proposed new evidence. This does not prevent the Appellant from submitting the 
evidence to the RPD in accordance with that division’s Rules.  
[38]  Pursuant to Section 111(1)(c) of the IRPA, the RAD  refers the matter to the Refugee 
Protection Division for redetermination by a differently  constituted panel. This appeal is allowed.  
 
 
 
(signed)  “XXXXXXXXXXXXXX”  
 XXXXXXXXXXXXXX  
 February 9, 2016  
 Date  
 
 
 
  
 
2016 CanLII 107244 (CA IRB)

