TB5-12986

TB5-12986

The RAD conducted an independent assessment under the hybrid standard, found the RPD erred by speculating about document fraud and about police procedures and by wrongly relying on an unimplemented change in China's family planning policy to dismiss risk, accepted that the female appellant has nexus as perceived political opinion, did not share the RPD's adverse credibility conclusions, and therefore set aside the RPD decision and substituted a determination that the appellants are Convention refugees pursuant to IRPA s.111(1)(b).

Citation
TB5-12986
Parties
Appellant (female): XXXX XXXX; Appellant (male): XXXX XXXX; Appellant (minor): XXXX XXXX; Designated Representative: XXXX XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
9 February 2016
Procedural Posture
Refugee Appeal (refugee Appeal Division Review of RPD Decision) / Final Decision on Appeal by RAD Substituting RPD Determination
Outcome
RPD decision set aside; RAD substitutes its determination that the Appellants are Convention refugees.
Legal Topics
Convention Refugee, Forced Sterilization/forced Abortion, Credibility Findings, Standard of Review (rad Hybrid Appeal), Nexus (perceived Political Opinion)
Source Language
English
Immigration Refugee Law Administrative Law Convention Refugee Forced Sterilization/forced Abortion Credibility Findings Standard of Review (rad Hybrid Appeal) Nexus (perceived Political Opinion)

Case Brief

Summary, issues, holding and outcome

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Parties

XXXX XXXX

Appellant (female)

XXXX XXXX

Appellant (male)

XXXX XXXX

Appellant (minor)

XXXX XXXX

Designated Representative

Minister

Respondent

Procedural Posture

Refugee Appeal (refugee Appeal Division Review of RPD Decision) / Final Decision on Appeal by RAD Substituting RPD Determination

Legal Issues

  1. 1 Whether the RPD erred by basing adverse findings on speculation and unsupported inferences
  2. 2 Whether the document alleging a forced abortion was properly rejected as fraudulent
  3. 3 Whether there is a nexus between the female appellant's conduct and a Convention ground (perceived political opinion)

Ratio Decidendi

The RAD conducted an independent assessment under the hybrid standard, found the RPD erred by speculating about document fraud and about police procedures and by wrongly relying on an unimplemented change in China's family planning policy to dismiss risk, accepted that the female appellant has nexus as perceived political opinion, did not share the RPD's adverse credibility conclusions, and therefore set aside the RPD decision and substituted a determination that the appellants are Convention refugees pursuant to IRPA s.111(1)(b).

Court Disposition

RPD decision set aside; RAD substitutes its determination that the Appellants are Convention refugees.

Orders

  • Set aside the Refugee Protection Division decision dated November 16, 2015
  • Substitute determination that the Appellants are Convention refugees pursuant to IRPA s.111(1)(b)