TB8-15473

TB8-15473

The RAD, applying a correctness standard, refused admission of late DNA evidence under Rule 29 for lack of explanation, found on independent review that the Principal Appellant credibly used a smuggler but nonetheless dismissed his claim due to unexplained delays and low objective risk of coerced male sterilization, and allowed the Associate Appellant's appeal because her credible testimony and corroborating documents established a forward‑facing risk of coercive abortion/sterilization making her a Convention refugee.

Citation
TB8-15473
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
12 August 2020
Procedural Posture
Refugee Appeal / Decision by Refugee Appeal Division (rad)
Outcome
Appeal dismissed as to the Principal Appellant; appeal allowed as to the Associate Appellant.
Legal Topics
Credibility Assessment, Admission of New Evidence, Standard of Review, Forced Abortion and Sterilization, Social Maintenance Fees, Use of Smugglers, Documentary Evidence Authenticity
Source Language
English
Immigration Law Refugee Law Administrative Law Human Rights Family Planning Enforcement Credibility Assessment Admission of New Evidence Standard of Review +4 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant

Procedural Posture

Refugee Appeal / Decision by Refugee Appeal Division (rad)

Legal Issues

  1. 1 Whether the Principal Appellant used a smuggler and whether adverse credibility findings based on that issue were justified
  2. 2 Whether the Household Register, marriage certificate and birth documents proved familial relationship and residence
  3. 3 Whether the Associate Appellant faced a forward‑facing risk of coercive abortion/sterilization amounting to persecution

Ratio Decidendi

The RAD, applying a correctness standard, refused admission of late DNA evidence under Rule 29 for lack of explanation, found on independent review that the Principal Appellant credibly used a smuggler but nonetheless dismissed his claim due to unexplained delays and low objective risk of coerced male sterilization, and allowed the Associate Appellant's appeal because her credible testimony and corroborating documents established a forward‑facing risk of coercive abortion/sterilization making her a Convention refugee.

Court Disposition

Appeal dismissed as to the Principal Appellant; appeal allowed as to the Associate Appellant.

Orders

  • Confirm RPD decision that the Principal Appellant is not a Convention refugee nor a person in need of protection pursuant to s.111(1)(a) of the IRPA
  • Set aside the RPD determination in respect of the Associate Appellant and substitute a finding that the Associate Appellant is a Convention refugee pursuant to s.111(1)(b) of the IRPA