TB4-05779

TB4-05779

The RAD found the RPD misapprehended the principal Appellant's testimony about the US visas and pre-judged that issue, which tainted the RPD's credibility analysis; the RPD also failed to explain the relevance and probative value of cited NDP documents regarding exit controls. Those errors undermined the adverse credibility findings and the RAD could not substitute a positive determination on the record; the appeal is allowed and the matter is referred back to the RPD for a de novo redetermination with specified directions.

Citation
TB4-05779
Parties
Appellant: Principal Appellant; Appellant: Husband; Appellant: Son (minor)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
6 December 2014
Procedural Posture
Refugee Appeal (rad) / Appeal Heard by Rad; Decision to Refer Matter Back to RPD for Redetermination
Outcome
Appeal allowed; matter referred back to the Refugee Protection Division for redetermination under s.111(1)(c) IRPA
Legal Topics
Credibility, Plausibility, Country Conditions, Sur Place Claim, Document Authenticity
Source Language
English
Immigration Refugee Law Administrative Law Credibility Plausibility Country Conditions Sur Place Claim Document Authenticity

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 3 Authorities cited 3 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Principal Appellant

Appellant

Husband

Appellant

Son (minor)

Appellant

Procedural Posture

Refugee Appeal (rad) / Appeal Heard by Rad; Decision to Refer Matter Back to RPD for Redetermination

Legal Issues

  1. 1 Whether there was sufficient credible evidence to support the RPD's adverse credibility findings
  2. 2 Whether the RPD misapprehended the principal Appellant's testimony regarding obtaining US visas and impermissibly drew a negative inference
  3. 3 Whether the RPD adequately supported its implausibility finding that the Appellants left China on their own passports

Ratio Decidendi

The RAD found the RPD misapprehended the principal Appellant's testimony about the US visas and pre-judged that issue, which tainted the RPD's credibility analysis; the RPD also failed to explain the relevance and probative value of cited NDP documents regarding exit controls. Those errors undermined the adverse credibility findings and the RAD could not substitute a positive determination on the record; the appeal is allowed and the matter is referred back to the RPD for a de novo redetermination with specified directions.

Court Disposition

Appeal allowed; matter referred back to the Refugee Protection Division for redetermination under s.111(1)(c) IRPA

Orders

  • Refer the matter back to the RPD for de novo analysis
  • RPD to analyze genuineness of the two adult Appellants' practice of Falun Gong in China and in Canada