TB8-15130

TB8-15130

The RAD found the RPD erred in drawing an adverse credibility inference from the absence of passports and misapplied Elazi; objective evidence and facts about travel via Hong Kong made unimpeded exit plausible and therefore did not rebut the presumption of truth; the RPD also failed to properly test and authenticate documentary evidence (summonses, dismissal letters, letters of support and photographs) relevant to the sur place claim; accordingly the appeal is allowed and the matter is referred to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA.

Citation
TB8-15130
Parties
Principal Appellant: XXXX XXXX; Spouse / Co‑appellant: XXXX XXXX; Minor Child (person Who Is the Subject of the Appeal): XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
24 February 2020
Procedural Posture
Refugee Appeal Under the Immigration and Refugee Protection Act / RAD Decision; Matter Referred to RPD for Redetermination by a Differently Constituted Panel
Outcome
Appeal allowed; matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to section 111(1)(c) of IRPA
Legal Topics
Credibility Findings, Religious Persecution, Sur Place Claim, Exit Controls / Exit Bans, Evidence Authentication, Standard of Review, Remand for Redetermination
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Findings Religious Persecution Sur Place Claim Exit Controls / Exit Bans Evidence Authentication +2 more

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Spouse / Co‑appellant

XXXX XXXX

Minor Child (person Who Is the Subject of the Appeal)

Procedural Posture

Refugee Appeal Under the Immigration and Refugee Protection Act / RAD Decision; Matter Referred to RPD for Redetermination by a Differently Constituted Panel

Legal Issues

  1. 1 Whether the RPD erred in drawing a negative credibility inference from the absence of passports
  2. 2 Whether Elazi was correctly applied
  3. 3 Whether the Appellants' ability to exit China undermines credibility

Ratio Decidendi

The RAD found the RPD erred in drawing an adverse credibility inference from the absence of passports and misapplied Elazi; objective evidence and facts about travel via Hong Kong made unimpeded exit plausible and therefore did not rebut the presumption of truth; the RPD also failed to properly test and authenticate documentary evidence (summonses, dismissal letters, letters of support and photographs) relevant to the sur place claim; accordingly the appeal is allowed and the matter is referred to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA.

Court Disposition

Appeal allowed; matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to section 111(1)(c) of IRPA

Orders

  • Appeal allowed; refer matter to RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) Immigration and Refugee Protection Act