Ruling upholds rejection of new evidence allegedly not presented due to counsel incompetence
The Federal Court has allowed a judicial review application sought by refugee applicants upon determining that the decision-maker took a siloed approach to the question of whether there were links between the alleged threats and the agents of harm.
In Ruiz v. Canada (Citizenship and Immigration), 2026 FC 102, the applicants were a family consisting of a father, a mother, and their minor child, who were all Colombian citizens. The father was an officer in the national police, then an investigator seeking to dismantle criminal organizations.
The applicants fled to Canada. Before the Refugee Protection Division (RPD), they filed a refugee claim based on their fear that Colombian police could not protect them from targeted threats and attacks. Just before the RPD hearing in December 2023, the father learned about another threat.
The RPD, which did not have the evidence of the new threat before it, dismissed the applicants’ claim.
The RPD saw no well-founded fear of persecution because the applicants failed to establish that the alleged agents of harm had attacked them or that the attacks were connected with each other or related to the father’s work or his opposition against police corruption.
The applicants appealed the dismissal to the Refugee Appeal Division (RAD). They sought to admit additional evidence regarding an incident in Colombia on Nov. 15, 2023, shortly before the RPD hearing, and a psychological assessment of the father after the RPD hearing.
The father asserted that his former counsel’s incompetence prevented the presentation of new evidence about the Nov. 15, 2023, incident.
In July 2024, the RAD declined to admit the new evidence and dismissed the applicants’ appeal. The RAD found that both sets of evidence fell short of the statutory requirements because the evidence was not new and the applicants failed to show that the division could not have reasonably expected them to present it before the RPD decision.
The RAD, like the RPD, accepted the refugee claim’s central facts, including:
- The father declined to alter the facts of his investigation of a criminal organization when his former superior pressured him to do so
- His employer constructively dismissed him after he refused to engage in corruption
- Objective evidence linked his former supervisor to a drug cartel
- Three instances of threats or attacks had occurred, with the father named explicitly in a written threat
The RAD also saw no well-founded fear of persecution. The RAD found no connections among the attacks, nor with the father’s work to dismantle criminal organizations or his refusal to participate in corrupt police practices.
The applicants applied for a judicial review to dispute the RAD’s refusal to admit the two sets of evidence. They alleged that the RAD erred by:
- failing to holistically consider the totality of their circumstances when assessing whether they had a well-founded fear of persecution or faced a risk under s. 97 of the Immigration and Refugee Protection Act, 2001 (IRPA)
- failed to explain why it preferred the letter evidence of the applicants’ former counsel over the father’s affidavit evidence relating to the Nov. 23, 2023 incident
RAD ruling quashed
The Federal Court quashed the RAD’s decision and sent back the matter to a different decision-maker for a redetermination.
First, the court acknowledged that the RAD reasonably refused to admit the applicants’ new evidence. The court saw no serious shortcomings in the RAD’s analysis for declining to admit the additional evidence.
The court also saw no basis to determine that the RAD preferred former counsel’s version of events. The court noted that the RAD relied on the applicants’ view that their former counsel had told them that the new evidence they wanted to present was irrelevant.
The RAD then found that the applicants could have mentioned the Nov. 23, 2023, incident during the RPD hearing, and that the RPD directly asked them under oath whether they had received any other threats since leaving Colombia.
However, the court considered a redetermination necessary because the RAD:
- unreasonably evaluated whether the applicants had shown a link between the father’s profile, the threats, and the agents of harm
- tackled the factors individually and dismissed each as failing to establish the link
- failed to holistically consider the factors, including the country condition documentation
The court emphasized that the RAD needed to take a holistic approach that considered the totality of the circumstances to evaluate whether the applicants were at risk under s. 97 of the IRPA or had a well-founded fear of persecution under s. 96 of the IRPA.
