Jessamy v MCI 2010 FC 489 PRRA fresh evidence

The Court set aside the decision holding that the officer erred in refusing to accept new evidence :21 While the fact that the evidence post-dates the hearing does not per se make it new evidence, likewise evidence that refers to an old risk should not be rejected as "not new" where it speaks to the development of the risk and is materially different evidence of that old risk. 22 The error in the Officer's approach to this evidence was the failure to address the five questions or factors outlined by the Court of Appeal. This analysis is not necessarily formulaic as long as it is clear the factors were considered. The Officer concluded that the letters from the three women did not show a change of circumstances and are not new evidence. The Officer did not first consider whether the evidence was new before considering what it showed. 23 The analytical step of considering first whether the evidence was new is important in this case because the Officer did not consider (i) relevance in terms of proving or disproving a fact that was relevant to the claim of protection, and (ii) newness in terms of contradicting a finding of fact by the RPD (including a credibility finding). Therefore, there was an error of law. 24 The Officer's conclusion as to the significance of the evidence (which is tied in with the "newness" analysis) is unreasonable. Firstly, the evidence shows that the old risk is continuing, present and real; secondly, the evidence differs from that which was before the Board. It was unreasonable to reject the evidence as not new. 25 The Officer's rejection of the new evidence is further undermined by her acceptance that the Applicant was in an abusive relationship but had state protection. This was not a finding where risk was presumed as an alternative position but discounted by the availability of state protection. 26 In finding that the Applicant was in an abusive relationship, the Officer made a finding that was contrary to the Immigration and Refugee Board (Board) which rejected that submission on the grounds of credibility. The Officer accepted the only evidence which could ground a finding of abusive relationship but rejected it as not "new" for purposes of admissibility. The Officer's finding that there was no substantially different risk is unreasonable given her finding which was contrary to the Board's decision.