TB4-12330

TB4-12330

The RAD could not support key RPD findings (notably the conclusion the Appellant was not a genuine Falun Gong practitioner and speculative findings about PSB practices) because the RPD failed to adequately probe critical issues and relied on unsupported speculation; there was insufficient evidence to permit the RAD to substitute a decision, and under s.111(1)(c) IRPA the matter must be referred back to the RPD for redetermination by a differently constituted panel.

Citation
TB4-12330
Parties
Appellant: XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
30 March 2015
Procedural Posture
Refugee Protection Appeal / Appeal to Refugee Appeal Division; Decision to Refer Back for Redetermination
Outcome
Decision referred to the Refugee Protection Division for redetermination by a differently-constituted panel; RAD unable to substitute a decision.
Legal Topics
Credibility, Standard of Review, Convention Refugee Status, Remittal for Redetermination, Sur Place, Document Genuineness
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Standard of Review Convention Refugee Status Remittal for Redetermination Sur Place +1 more

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Parties

XXXX

Appellant

Minister

Respondent

Procedural Posture

Refugee Protection Appeal / Appeal to Refugee Appeal Division; Decision to Refer Back for Redetermination

Legal Issues

  1. 1 Whether the Appellant is a genuine Falun Gong practitioner
  2. 2 Whether adverse credibility inferences based on omissions from the Basis of Claim were justified
  3. 3 Whether the PSB summons is genuine and the weight to be attached to it

Ratio Decidendi

The RAD could not support key RPD findings (notably the conclusion the Appellant was not a genuine Falun Gong practitioner and speculative findings about PSB practices) because the RPD failed to adequately probe critical issues and relied on unsupported speculation; there was insufficient evidence to permit the RAD to substitute a decision, and under s.111(1)(c) IRPA the matter must be referred back to the RPD for redetermination by a differently constituted panel.

Court Disposition

Decision referred to the Refugee Protection Division for redetermination by a differently-constituted panel; RAD unable to substitute a decision.

Orders

  • Refer the refugee claim to the Refugee Protection Division for redetermination by a differently-constituted panel pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act.