TC1-04879

TC1-04879

The RAD found that the RPD erred by relying on credibility findings that were either unsupported or not central to the claim; the presumption of truthfulness was not rebutted on the whole of the evidence; both appellants are, on balance of probabilities, sincere Falun Gong practitioners; documentary country evidence establishes a real risk of persecution by state agents in China and no operational state protection or IFA exists; therefore the RAD substituted the RPD decision and found the appellants to be Convention refugees under IRPA section 96.

Citation
TC1-04879
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
29 October 2021
Procedural Posture
Refugee Appeal / Refugee Appeal Division Decision Substituting RPD Determination
Outcome
Appeal allowed; RPD decision set aside and substituted: appellants found to be Convention refugees.
Legal Topics
Credibility Assessment, Convention Refugee Status, Sur Place Claim, Use of Fraudulent Documents, State Protection / IFA, Country Conditions
Source Language
English
Immigration Law Refugee Law Administrative Law Human Rights Law Credibility Assessment Convention Refugee Status Sur Place Claim Use of Fraudulent Documents +2 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant

Procedural Posture

Refugee Appeal / Refugee Appeal Division Decision Substituting RPD Determination

Legal Issues

  1. 1 Whether the RPD erred in finding the appellants not credible
  2. 2 Whether the appellants are sincere Falun Gong practitioners (in China and sur place in Canada)
  3. 3 Whether use of fraudulent passports undermines credibility given Falun Gong principle of truthfulness

Ratio Decidendi

The RAD found that the RPD erred by relying on credibility findings that were either unsupported or not central to the claim; the presumption of truthfulness was not rebutted on the whole of the evidence; both appellants are, on balance of probabilities, sincere Falun Gong practitioners; documentary country evidence establishes a real risk of persecution by state agents in China and no operational state protection or IFA exists; therefore the RAD substituted the RPD decision and found the appellants to be Convention refugees under IRPA section 96.

Court Disposition

Appeal allowed; RPD decision set aside and substituted: appellants found to be Convention refugees.

Orders

  • Set aside RPD determination dated April 19, 2021 and substitute RAD determination that the appellants are Convention refugees pursuant to IRPA section 96