VB3-01770

VB3-01770

The RAD concluded the RPD's exclusion decision was unreasonable and legally flawed because the RPD failed to make sufficiently specific factual findings tying the appellant to particular excludable acts and applied a now‑rejected complicity test (personal and knowing participation) rather than the contribution‑based/significant contribution standard articulated in Ezokola; accordingly the RAD set aside the RPD determination and, because it could not fairly substitute a final decision without hearing the evidence presented to the RPD, referred the matter to the RPD for redetermination by a differently constituted panel under s.111(1)(c) IRPA.

Citation
VB3-01770
Parties
Appellant / Claimant: XXXXX XXXXX; Respondent: Minister (Canada)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
2 December 2013
Procedural Posture
Refugee Appeal Under IRPA (exclusion Under Article 1 F(c)) / Appeal to Refugee Appeal Division Resulting in Referral to Refugee Protection Division for Redetermination
Outcome
Appeal allowed; RPD determination set aside; matter referred to the Refugee Protection Division for redetermination by a differently constituted panel under subsection 111(1)(c) of IRPA.
Legal Topics
Exclusion (article 1 F(c)), Complicity/significant Contribution Test, Standard of Review, Referral for Redetermination, New Evidence Admissibility
Source Language
English
Immigration Law Refugee Law Administrative Law International Law Exclusion (article 1 F(c)) Complicity/significant Contribution Test Standard of Review Referral for Redetermination +1 more

Case Brief

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Parties

XXXXX XXXXX

Appellant / Claimant

Minister (Canada)

Respondent

Procedural Posture

Refugee Appeal Under IRPA (exclusion Under Article 1 F(c)) / Appeal to Refugee Appeal Division Resulting in Referral to Refugee Protection Division for Redetermination

Legal Issues

  1. 1 Whether the RPD properly found exclusion under Article 1F(c) against the appellant based on alleged complicity with the BNP
  2. 2 Whether the RPD applied the correct legal test for complicity (personal and knowing participation v. significant contribution)
  3. 3 Whether the RPD made sufficiently specific factual findings to support an Article 1F exclusion

Ratio Decidendi

The RAD concluded the RPD's exclusion decision was unreasonable and legally flawed because the RPD failed to make sufficiently specific factual findings tying the appellant to particular excludable acts and applied a now‑rejected complicity test (personal and knowing participation) rather than the contribution‑based/significant contribution standard articulated in Ezokola; accordingly the RAD set aside the RPD determination and, because it could not fairly substitute a final decision without hearing the evidence presented to the RPD, referred the matter to the RPD for redetermination by a differently constituted panel under s.111(1)(c) IRPA.

Court Disposition

Appeal allowed; RPD determination set aside; matter referred to the Refugee Protection Division for redetermination by a differently constituted panel under subsection 111(1)(c) of IRPA.

Orders

  • Accept documents at AR pages 449-456 as evidence on the appeal
  • Allow appellant's appeal and set aside the RPD decision on exclusion under Article 1F(c)