TB4-02208

TB4-02208

The RPD made several unreasonable credibility findings and failed to make clear findings on the appellant's practice of Falun Gong in Canada (sur place), rendering its decision wrong in fact and law; because the RAD cannot fairly substitute its own credibility findings on key factual matters (notably the appellant's departure using her genuine passport) the appropriate remedy is to set aside the RPD decision and refer the matter to the RPD for redetermination by a differently‑constituted panel pursuant to s.111(1)(c) IRPA.

Citation
TB4-02208
Parties
Principal Appellant: XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX; Minor Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
18 June 2014
Procedural Posture
Refugee Protection Appeal / Appeal to Refugee Appeal Division (rad); Decision to Refer to RPD for Redetermination
Outcome
Appeal allowed; RPD decision set aside as wrong in fact and law; matter referred back to the RPD for redetermination by a differently‑constituted panel pursuant to s.111(1)(c) IRPA
Legal Topics
Credibility Assessment, Sur Place, Standard of Review, Referral for Redetermination, Country Conditions, Procedural Fairness
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Assessment Sur Place Standard of Review Referral for Redetermination Country Conditions +1 more

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Parties

XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX

Principal Appellant

XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Protection Appeal / Appeal to Refugee Appeal Division (rad); Decision to Refer to RPD for Redetermination

Legal Issues

  1. 1 Whether the RPD erred in credibility findings and made unreasonable findings of fact
  2. 2 Whether the RPD failed to consider a sur place claim arising from activities in Canada
  3. 3 What standard of review (correctness vs reasonableness) applies to RAD review of RPD findings

Ratio Decidendi

The RPD made several unreasonable credibility findings and failed to make clear findings on the appellant's practice of Falun Gong in Canada (sur place), rendering its decision wrong in fact and law; because the RAD cannot fairly substitute its own credibility findings on key factual matters (notably the appellant's departure using her genuine passport) the appropriate remedy is to set aside the RPD decision and refer the matter to the RPD for redetermination by a differently‑constituted panel pursuant to s.111(1)(c) IRPA.

Court Disposition

Appeal allowed; RPD decision set aside as wrong in fact and law; matter referred back to the RPD for redetermination by a differently‑constituted panel pursuant to s.111(1)(c) IRPA

Orders

  • Set aside RPD decision of February 19, 2014; refer matter to RPD for redetermination by a differently‑constituted panel pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act