TB7-17649

TB7-17649

The RPD breached procedural fairness because excessive and repeated disputes over questioning during the hearings materially impeded the Appellants' ability to understand questions and present their evidence; that breach invalidates the RPD decision and requires remittal to a differently constituted RPD panel for re-determination rather than substitution by the RAD.

Citation
TB7-17649
Parties
Appellant (principal): XXXX XXXX XXXX; Appellant (spouse): XXXX XXXX XXXX; Appellant (mother): XXXX XXXX XXXX; Appellant (minor): XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
16 July 2018
Procedural Posture
Refugee Protection Appeal Under IRPA / Appeal to Refugee Appeal Division From Refugee Protection Division Decision Dated July 19, 2017; RAD Decision July 16, 2018 Remitting Matter to RPD for Re Determination by a Differently Constituted Panel
Outcome
Appeal allowed; matter remitted to the RPD for re-determination by a differently constituted panel pursuant to IRPA s.111(1)(c) and s.111(2)
Legal Topics
Procedural Fairness, Natural Justice, Credibility Assessment, Sur Place Claims, Family Planning Policy, Religious Persecution (falun Gong), Remittal
Source Language
English
Immigration Law Refugee Law Administrative Law Procedural Fairness Natural Justice Credibility Assessment Sur Place Claims Family Planning Policy +2 more

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 5 Party arguments 2
Sign in to unlock

Parties

XXXX XXXX XXXX

Appellant (principal)

XXXX XXXX XXXX

Appellant (spouse)

XXXX XXXX XXXX

Appellant (mother)

XXXX XXXX XXXX

Appellant (minor)

Procedural Posture

Refugee Protection Appeal Under IRPA / Appeal to Refugee Appeal Division From Refugee Protection Division Decision Dated July 19, 2017; RAD Decision July 16, 2018 Remitting Matter to RPD for Re Determination by a Differently Constituted Panel

Legal Issues

  1. 1 Whether the RPD breached procedural fairness by conducting a hearing in a manner that prevented the Appellants from presenting their case fully
  2. 2 Whether the RPD erred in credibility findings concerning Falun Gong practice and subjective fear
  3. 3 Whether the penalty for breaching family planning policy in Guangdong amounts to persecution

Ratio Decidendi

The RPD breached procedural fairness because excessive and repeated disputes over questioning during the hearings materially impeded the Appellants' ability to understand questions and present their evidence; that breach invalidates the RPD decision and requires remittal to a differently constituted RPD panel for re-determination rather than substitution by the RAD.

Court Disposition

Appeal allowed; matter remitted to the RPD for re-determination by a differently constituted panel pursuant to IRPA s.111(1)(c) and s.111(2)

Orders

  • Appeal allowed
  • Matter referred back to the Refugee Protection Division for re-determination by a newly constituted panel