In Refugee Claim New Evidence, the Federal Court dismissed a nine-year-old Indian citizen’s challenge to the Refugee Appeal Division’s refusal of her protection claim. Justice Conroy found the RAD reasonably declined to admit proposed new evidence and reasonably upheld the earlier finding that the child was not a Convention refugee or a person in need of protection.
Federal Court dismisses challenge to RAD decision
In Saif v. Canada (Citizenship and Immigration), 2026 FC 1156, released in Toronto on September 14, 2026, Madam Justice Conroy reviewed a Refugee Appeal Division decision concerning a child who arrived in Canada with her mother in 2022.
The Refugee Protection Division heard their claims jointly but assessed them separately. In its March 20, 2024 decision, it accepted the mother’s claim under section 96 of the Immigration and Refugee Protection Act, assessing her risk in Pakistan. It refused the child’s claim, assessing her risk in India, where she is a citizen.
The child sought judicial review after the RAD confirmed that she was neither a Convention refugee nor a person in need of protection. The Court applied the reasonableness standard and concluded that she had not identified a reviewable error in the RAD’s decision.
RAD reasonably refused proposed new evidence
Before the RAD, the applicant sought to file affidavits from her mother and father, as well as materials concerning child labour in India. The proposed evidence was intended to support her argument that she faced a risk of abduction without parental protection in India.
The Court explained that refugee claimants must generally present available evidence before the RPD. Under section 110(4) of IRPA, the RAD may admit evidence that arose after the RPD rejected the claim, was not reasonably available at that time, or could not reasonably have been expected to have been presented to the RPD.
Justice Conroy found the RAD reasonably concluded that the applicant knew a split decision was possible. The RPD transcript showed that the member had stated that the mother’s and daughter’s claims would be assessed individually, against Pakistan and India respectively. The Court therefore accepted the RAD’s finding that evidence and submissions about abduction risk should have been made before the RPD.
The Court also upheld the RAD’s treatment of the father’s affidavit. The RAD had found that his work-related absences had already been discussed before the RPD and that much of the affidavit was not new. It was also open to the RAD to find that the applicant had not shown the undated materials were not reasonably available before the RPD decision.
Family unity does not determine refugee protection
The applicant argued that she should not be separated from her mother because of her age. The Court held that the objective of family unity does not govern whether a claimant needs protection under sections 96 or 97 of IRPA. A grant of refugee protection to one family member does not itself entitle another family member to refugee status.
The Court noted that a child’s claim can exceptionally be inextricably linked to a parent’s claim based on the circumstances of a case. However, the applicant did not rely on that exception, and the Court observed that the mother’s and child’s claims were assessed against different countries and for different risks.
On the merits, the Court found it was open to the RAD to conclude that the evidence did not establish the child would be abandoned by her family in India. The RAD had found no information showing other relatives could not or would not care for her, and insufficient evidence that her father could not adjust his employment or arrange alternative care.
The Court also found the RAD had considered the claimed risks arising from anti-Muslim violence, abduction and child labour. It was not the Court’s role on judicial review to reweigh the evidence or interfere with the RAD’s factual findings absent exceptional circumstances.
Court notes possible immigration and removal safeguards
Although the judicial review was dismissed, Justice Conroy stated that the applicant was not without options to remain in Canada with her mother. The Court noted that the mother, as a protected person, may include immediate family members such as her daughter in an application for permanent residence. The judgment also identified an application for permanent residence on humanitarian and compassionate considerations as another possible option.
At the hearing, counsel confirmed that the mother intended to pursue a permanent residence application including the applicant as a dependant. The Court further noted that Canada Border Services Agency officials must consider the best interests of the child before removal.
Justice Conroy stated that, if that safeguard failed the applicant, she could ultimately seek a stay of removal from the Federal Court. The Court did not pre-judge such a matter, but said that, based on the circumstances then before it, the applicant would have strong arguments in favour of a stay motion.
Disposition
The application for judicial review was dismissed. The Court certified no question and awarded no costs.
Source: Federal Court Decisions