VB7-04203

VB7-04203

Because the appellant's PTSD prevented presentation of a gender-based claim to the RPD and prevented timely perfection of the appeal, and because the new gender-based claim and related evidence were not before the RPD (placing them outside the normal scope of admissible new evidence at the RAD), procedural fairness and the statutory limits of the RAD require referral of the matter back to the RPD for redetermination by a differently constituted panel rather than a substantive determination by the RAD.

Citation
VB7-04203
Parties
Principal Appellant: XXXX XXXX; Minor Associate Appellant: XXXX XXXX XXXX XXXX XXXX; Respondent: Minister (Canada)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
4 January 2019
Procedural Posture
Refugee Protection Appeal to Refugee Appeal Division / Appeal Allowed and Referred to Refugee Protection Division for Redetermination by a Differently Constituted Panel
Outcome
Appeal allowed; matter referred to the Refugee Protection Division for determination on the merits by a differently constituted panel
Legal Topics
Gender Based Persecution, Post Traumatic Stress Disorder, Admissibility of New Evidence, Remedies Referral
Source Language
English
Immigration Law Refugee Law Administrative Law Procedural Fairness Gender Based Persecution Post Traumatic Stress Disorder Admissibility of New Evidence Remedies Referral

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

XXXX XXXX

Principal Appellant

XXXX XXXX XXXX XXXX XXXX

Minor Associate Appellant

Minister (Canada)

Respondent

Procedural Posture

Refugee Protection Appeal to Refugee Appeal Division / Appeal Allowed and Referred to Refugee Protection Division for Redetermination by a Differently Constituted Panel

Legal Issues

  1. 1 Whether RAD may admit new evidence relating to gender-based harm and PTSD that was not before the RPD
  2. 2 Whether the RAD may decide claims that were not adjudicated by the RPD or must refer them back
  3. 3 Whether PTSD constitutes exceptional circumstances preventing timely perfection of appeal and justifying reopening

Ratio Decidendi

Because the appellant's PTSD prevented presentation of a gender-based claim to the RPD and prevented timely perfection of the appeal, and because the new gender-based claim and related evidence were not before the RPD (placing them outside the normal scope of admissible new evidence at the RAD), procedural fairness and the statutory limits of the RAD require referral of the matter back to the RPD for redetermination by a differently constituted panel rather than a substantive determination by the RAD.

Court Disposition

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

Orders

  • Refer the matter back to the Refugee Protection Division for redetermination on the merits of the appellant's claim for gender-based harm or violence
  • Refugee Protection Division to consider appropriate accommodation or adaptation for an oral hearing in light of the appellant's PTSD and vulnerability