VB4-03202

VB4-03202

The RPD erred by failing to join two factually and legally linked claims at first instance, producing a procedural unfairness that the RAD could not cure within its constrained appellate evidentiary and hearing powers under s.110; accordingly the proper remedy under s.111(2) was to set aside the RPD determinations and refer both matters back to the RPD for re-determination by a different member so they can be joined and adjudicated together.

Citation
VB4-03202
Parties
Appellant (appeal #1): XXXX XXXX XXXX XXXX; Respondent (appeal #2): XXXX XXXX XXXX XXXX; Appellant/intervenor: Minister of Citizenship and Immigration
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
17 April 2015
Procedural Posture
Immigration Refugee Appeal Pursuant to Immigration and Refugee Protection Act S.110 / Refugee Appeal Division Hearing of Joined Appeals; Decision to Set Aside RPD Determinations and Refer Back to RPD for Re Determination by a Different Member
Outcome
Appeals allowed; RPD decisions set aside and matters referred back to the Refugee Protection Division for re-determination by a different member; RAD expects the claims to be joined at the RPD but leaves joinder to RPD's discretion if circumstances change.
Legal Topics
Joinder of Appeals, Procedural Fairness, Remedy Referral, Admissibility of Evidence, CBSA Interviews, Standard of Review, Representation Rights
Source Language
English
Immigration Law Refugee Law Administrative Law Evidence Law Joinder of Appeals Procedural Fairness Remedy Referral Admissibility of Evidence +3 more

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Parties

XXXX XXXX XXXX XXXX

Appellant (appeal #1)

XXXX XXXX XXXX XXXX

Respondent (appeal #2)

Minister of Citizenship and Immigration

Appellant/intervenor

Procedural Posture

Immigration Refugee Appeal Pursuant to Immigration and Refugee Protection Act S.110 / Refugee Appeal Division Hearing of Joined Appeals; Decision to Set Aside RPD Determinations and Refer Back to RPD for Re Determination by a Different Member

Legal Issues

  1. 1 Whether the RAD should join the two appeals
  2. 2 Whether the RPD erred in declining to join the claims at first instance
  3. 3 Whether the RAD can cure the procedural error by deciding the merits or convening an oral hearing

Ratio Decidendi

The RPD erred by failing to join two factually and legally linked claims at first instance, producing a procedural unfairness that the RAD could not cure within its constrained appellate evidentiary and hearing powers under s.110; accordingly the proper remedy under s.111(2) was to set aside the RPD determinations and refer both matters back to the RPD for re-determination by a different member so they can be joined and adjudicated together.

Court Disposition

Appeals allowed; RPD decisions set aside and matters referred back to the Refugee Protection Division for re-determination by a different member; RAD expects the claims to be joined at the RPD but leaves joinder to RPD's discretion if circumstances change.

Orders

  • Set aside the Refugee Protection Division decisions in both matters and refer both matters back to the Refugee Protection Division for re-determination by a different member; parties to be given opportunity to address the full body of evidence including CBSA interviews and subsequent materials; RAD notes expectation...