TB8-25659

TB8-25659

The RAD admitted the updated psychological report as new, credible and relevant, found no oral hearing was required, but concluded the RPD committed a procedural fairness error by failing to provide a designated representative to a vulnerable Principal Appellant and by not demonstrating consideration of the Vulnerable Persons Guideline; because credibility was determinative and could have been affected by this failure, the RAD could not substitute a positive finding and referred the matter back to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA.

Citation
TB8-25659
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
29 January 2020
Procedural Posture
Refugee Appeal Under the Immigration and Refugee Protection Act / Reasons and Decision by the Refugee Appeal Division; Referral to RPD for Redetermination
Outcome
Appeal allowed and matter referred to the Refugee Protection Division for redetermination
Legal Topics
New Evidence Admissibility, Designated Representative, Credibility Findings, Oral Hearing, Standard of Review, Referral for Redetermination
Source Language
English
Immigration Law Refugee Law Administrative Law Procedural Fairness Mental Health and Vulnerability New Evidence Admissibility Designated Representative Credibility Findings +3 more

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant

Procedural Posture

Refugee Appeal Under the Immigration and Refugee Protection Act / Reasons and Decision by the Refugee Appeal Division; Referral to RPD for Redetermination

Legal Issues

  1. 1 Whether the psychological report qualifies as new evidence under s.110(4) IRPA
  2. 2 Whether an oral hearing under s.110(6) IRPA was warranted
  3. 3 Whether the RPD erred in failing to provide a designated representative to a vulnerable claimant

Ratio Decidendi

The RAD admitted the updated psychological report as new, credible and relevant, found no oral hearing was required, but concluded the RPD committed a procedural fairness error by failing to provide a designated representative to a vulnerable Principal Appellant and by not demonstrating consideration of the Vulnerable Persons Guideline; because credibility was determinative and could have been affected by this failure, the RAD could not substitute a positive finding and referred the matter back to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA.

Court Disposition

Appeal allowed and matter referred to the Refugee Protection Division for redetermination

Orders

  • Appeal allowed
  • Updated psychological report admitted into evidence