TB4-06786

TB4-06786

The RAD found the RPD erred in law by using the 'balance of probabilities' standard rather than the correct 'reasonable chance/more than a mere possibility' standard to assess prospective risk; because the error prevented proper assessment and new evidence could not be fully adjudicated on appeal, the RAD allowed the appeal and referred the matter to the RPD for re-determination by a differently constituted panel under ss.111(1)(c) and 111(2) IRPA.

Citation
TB4-06786
Parties
Appellant (principal): XXXX XXXX XXXX; Appellant (minor): XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
10 September 2015
Procedural Posture
Refugee Appeal (rad Review Under Irpa) / Appeal Heard by Rad; Matter Referred to RPD for Re Determination
Outcome
Appeal allowed; matter referred to the Refugee Protection Division for re-determination by a differently constituted panel
Legal Topics
Forced Abortion, Sterilization, Family Planning Enforcement, Standard of Proof, Credibility Findings, Referral for Redetermination
Source Language
English
Immigration Law Refugee Law Administrative Law Human Rights Law Forced Abortion Sterilization Family Planning Enforcement Standard of Proof +2 more

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Parties

XXXX XXXX XXXX

Appellant (principal)

XXXX XXXX XXXX

Appellant (minor)

Procedural Posture

Refugee Appeal (rad Review Under Irpa) / Appeal Heard by Rad; Matter Referred to RPD for Re Determination

Legal Issues

  1. 1 Whether the RPD applied the correct standard of proof for establishing an objective risk of persecution
  2. 2 Whether the Appellants face a real risk of forced abortion, sterilization or other persecution by family planning authorities in China
  3. 3 Whether the RAD must defer to RPD credibility findings or conduct an independent assessment

Ratio Decidendi

The RAD found the RPD erred in law by using the 'balance of probabilities' standard rather than the correct 'reasonable chance/more than a mere possibility' standard to assess prospective risk; because the error prevented proper assessment and new evidence could not be fully adjudicated on appeal, the RAD allowed the appeal and referred the matter to the RPD for re-determination by a differently constituted panel under ss.111(1)(c) and 111(2) IRPA.

Court Disposition

Appeal allowed; matter referred to the Refugee Protection Division for re-determination by a differently constituted panel

Orders

  • Appeal allowed
  • Matter referred to the Refugee Protection Division for re-determination pursuant to ss.111(1)(c) and 111(2) of the Immigration and Refugee Protection Act