MB4-02161

MB4-02161

The RAD found documents A-1 to A-5 satisfy s.110(4) IRPA (not reasonably available before the RPD), are credible, relevant and material to the single central issue the RPD relied on (appellants' presence in the DRC between October 2011 and 2014), and thus the RPD's adverse credibility finding on that point cannot stand; however because the RAD cannot conduct oral credibility assessments and the new evidence alone does not allow the RAD to make determinative findings on well-founded fear or protection issues, the appropriate remedy is to set aside the RPD decision and refer the claims to a differently constituted RPD for redetermination.

Citation
MB4-02161
Parties
Principal Appellant: XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX; Appellant Wife: XXXX XXXX XXXX; Appellant Minor Daughter: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
26 January 2015
Procedural Posture
Refugee Appeal (refugee Appeal Division Under Irpa) / Decision on Admissibility of New Evidence and Merits of Appeal; Appeal Allowed and Matter Referred to RPD for Redetermination
Outcome
Appeal allowed; RPD decision set aside and matter referred to a differently constituted panel of the RPD for re-determination of the refugee protection claims
Legal Topics
Credibility Assessment, Admissibility of New Evidence, S.110(4) IRPA, S.110(6) IRPA Hearing Test, Referral to RPD, Standard of Review
Source Language
English
Immigration Refugee Law Administrative Law Credibility Assessment Admissibility of New Evidence S.110(4) IRPA S.110(6) IRPA Hearing Test Referral to RPD +1 more

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Parties

XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Appellant Wife

XXXX XXXX XXXX

Appellant Minor Daughter

Procedural Posture

Refugee Appeal (refugee Appeal Division Under Irpa) / Decision on Admissibility of New Evidence and Merits of Appeal; Appeal Allowed and Matter Referred to RPD for Redetermination

Legal Issues

  1. 1 Whether documents presented on appeal qualify as 'new evidence' under s.110(4) IRPA
  2. 2 Whether the newly admitted evidence is credible, relevant and material
  3. 3 Whether the admitted evidence justifies holding a hearing under s.110(6) IRPA

Ratio Decidendi

The RAD found documents A-1 to A-5 satisfy s.110(4) IRPA (not reasonably available before the RPD), are credible, relevant and material to the single central issue the RPD relied on (appellants' presence in the DRC between October 2011 and 2014), and thus the RPD's adverse credibility finding on that point cannot stand; however because the RAD cannot conduct oral credibility assessments and the new evidence alone does not allow the RAD to make determinative findings on well-founded fear or protection issues, the appropriate remedy is to set aside the RPD decision and refer the claims to a differently constituted RPD for redetermination.

Court Disposition

Appeal allowed; RPD decision set aside and matter referred to a differently constituted panel of the RPD for re-determination of the refugee protection claims

Orders

  • Decision of the Refugee Protection Division dated May 8, 2014 set aside
  • Documents A-1 to A-5 admitted into the appeal record