TB9-16512

TB9-16512

The RAD allowed the appeal, holding that the RPD breached procedural fairness by relying on undisclosed extrinsic medical information and erred in its credibility assessment of the Appellants' Falun Gong identity; on independent assessment the RAD accepted the Appellants as genuine Falun Gong practitioners, found they face persecution in China with no state protection or viable internal flight alternative, and substituted a positive determination that they are Convention refugees pursuant to paragraph 111(1)(b) IRPA.

Citation
TB9-16512
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX; Minor Appellant: XXXX XXXX; Counsel for the Persons Who Are the Subject of the Appeal: Mark Rosenblatt; Designated Representative: XXXX XXXX; Counsel for the Minister: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
27 August 2019
Procedural Posture
Refugee Protection Appeal (refugee Appeal Division) / Appeal Decision — RAD Substituted Positive Determination Under IRPA Paragraph 111(1)(b)
Outcome
Appeal allowed; RPD negative determination set aside; RAD substitutes a positive determination that the Appellants are Convention refugees under IRPA paragraph 111(1)(b)
Legal Topics
Credibility Assessment, Convention Refugee, Particular Social Group, Falun Gong, Internal Flight Alternative, Extrinsic Evidence, Disclosure Obligations
Source Language
English
Immigration Law Refugee Law Administrative Law Procedural Fairness Credibility Assessment Convention Refugee Particular Social Group Falun Gong +3 more

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant

XXXX XXXX

Minor Appellant

Mark Rosenblatt

Counsel for the Persons Who Are the Subject of the Appeal

XXXX XXXX

Designated Representative

Minister

Counsel for the Minister

Procedural Posture

Refugee Protection Appeal (refugee Appeal Division) / Appeal Decision — RAD Substituted Positive Determination Under IRPA Paragraph 111(1)(b)

Legal Issues

  1. 1 Whether the RPD breached procedural fairness by relying on extrinsic internet evidence without disclosure and opportunity to respond
  2. 2 Whether the RPD erred in its credibility assessment regarding the Appellants' identities as Falun Gong practitioners
  3. 3 Whether deference to the RPD was warranted or an independent RAD assessment was required

Ratio Decidendi

The RAD allowed the appeal, holding that the RPD breached procedural fairness by relying on undisclosed extrinsic medical information and erred in its credibility assessment of the Appellants' Falun Gong identity; on independent assessment the RAD accepted the Appellants as genuine Falun Gong practitioners, found they face persecution in China with no state protection or viable internal flight alternative, and substituted a positive determination that they are Convention refugees pursuant to paragraph 111(1)(b) IRPA.

Court Disposition

Appeal allowed; RPD negative determination set aside; RAD substitutes a positive determination that the Appellants are Convention refugees under IRPA paragraph 111(1)(b)

Orders

  • Appeal allowed pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act
  • Refugee Protection Division decision set aside and replaced with a positive determination finding the Appellants are Convention refugees