VB5-02198

VB5-02198

The RAD found the RPD breached procedural fairness by effectively precluding the appellants' counsel from calling the husband as a witness and by making adverse credibility findings about matters the husband could have addressed before hearing his evidence; that breach required setting aside the RPD determination for the principal and minor appellants and referring their claims back to the RPD for re‑determination by a differently constituted panel, while confirming the RPD decision dismissing the U.S. minor appellant for lack of evidence of risk.

Citation
VB5-02198
Parties
Principal Appellant: XXXX XXXX; Minor Appellant: XXXX XXXX XXXX; U.s. Minor Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
26 February 2016
Procedural Posture
Refugee Appeal (rad Review of RPD Decision) / Appeal to Refugee Appeal Division Resulting in Written Reasons and Disposition
Outcome
U.S. minor appellant: appeal dismissed and RPD decision confirmed; Principal and minor appellants: appeal allowed in part, RPD decision set aside and matter referred to RPD for re-determination by a differently constituted panel.
Legal Topics
Admissibility of New Evidence Under S.110(4), Standard of Review of RAD, Procedural Fairness and Credibility, Remedies: Setting Aside and Referral for Redetermination
Source Language
English
Immigration Law Refugee Law Administrative Law Evidence Law Admissibility of New Evidence Under S.110(4) Standard of Review of RAD Procedural Fairness and Credibility Remedies: Setting Aside and Referral for Redetermination

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Minor Appellant

XXXX XXXX

U.s. Minor Appellant

Procedural Posture

Refugee Appeal (rad Review of RPD Decision) / Appeal to Refugee Appeal Division Resulting in Written Reasons and Disposition

Legal Issues

  1. 1 What standard of review should RAD apply to RPD findings
  2. 2 Which pieces of new evidence satisfy s.110(4) IRPA and RAD Rules
  3. 3 Impact of new evidence on RPD findings

Ratio Decidendi

The RAD found the RPD breached procedural fairness by effectively precluding the appellants' counsel from calling the husband as a witness and by making adverse credibility findings about matters the husband could have addressed before hearing his evidence; that breach required setting aside the RPD determination for the principal and minor appellants and referring their claims back to the RPD for re‑determination by a differently constituted panel, while confirming the RPD decision dismissing the U.S. minor appellant for lack of evidence of risk.

Court Disposition

U.S. minor appellant: appeal dismissed and RPD decision confirmed; Principal and minor appellants: appeal allowed in part, RPD decision set aside and matter referred to RPD for re-determination by a differently constituted panel.

Orders

  • Confirm RPD decision that the U.S. minor appellant is neither a Convention refugee nor a person in need of protection
  • Set aside the RPD determination regarding the principal and minor appellants and refer the matter back to the RPD for re-determination by a differently constituted panel