TB5-08071

TB5-08071

The appeal was allowed because the RPD relied on an attachment to the National Documentation Package (Guangdong Population and Family Planning Regulations, item 5.5) that was not accessible or disclosed to the appellants, constituting a breach of procedural fairness and an error of law; because the RAD cannot complete the required independent/hybrid assessment without allowing the appellants to have access to that material, the correct remedy is to refer the matter back to the RPD for re-determination under s.111(1)(c) and (2) IRPA.

Citation
TB5-08071
Parties
Principal Appellant: XXXX XXXX XXXX; Minor Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
30 September 2015
Procedural Posture
Refugee Appeal Under IRPA / Appeal Heard by Refugee Appeal Division; Matter Referred to Refugee Protection Division for Re Determination
Outcome
Appeal allowed; matter referred to Refugee Protection Division for re-determination
Legal Topics
Family Planning Policy, Forced Sterilization/abortion, Procedural Fairness and Disclosure, Standard of Review/hybrid Appeal, Risk and Persecution Assessment
Source Language
English
Immigration Refugee Law Administrative Law Family Planning Policy Forced Sterilization/abortion Procedural Fairness and Disclosure Standard of Review/hybrid Appeal Risk and Persecution Assessment

Case Brief

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Appeal Under IRPA / Appeal Heard by Refugee Appeal Division; Matter Referred to Refugee Protection Division for Re Determination

Legal Issues

  1. 1 Whether the principal appellant faces a real risk of forced abortion or sterilization on return to China
  2. 2 Whether forced insertion of an IUD or other coercive birth control constitutes persecution
  3. 3 Whether the RPD breached procedural fairness by relying on a document that was not disclosed to the appellants

Ratio Decidendi

The appeal was allowed because the RPD relied on an attachment to the National Documentation Package (Guangdong Population and Family Planning Regulations, item 5.5) that was not accessible or disclosed to the appellants, constituting a breach of procedural fairness and an error of law; because the RAD cannot complete the required independent/hybrid assessment without allowing the appellants to have access to that material, the correct remedy is to refer the matter back to the RPD for re-determination under s.111(1)(c) and (2) IRPA.

Court Disposition

Appeal allowed; matter referred to Refugee Protection Division for re-determination

Orders

  • Appeal allowed pursuant to ss.111(1)(c) and (2) IRPA and matter referred to the RPD for re-determination by a differently constituted panel
  • The attachments to NDP item 5.5 (Population and Family Planning Regulations of Guangdong Province) are to be disclosed to the parties prior to the RPD hearing