VB4-03383

VB4-03383

The RAD allowed the appeal, set aside the RPD determination and referred the claim to the RPD for redetermination because the RPD erred in finding no nexus to a Convention ground and failed to provide adequate reasons for its credibility finding regarding the appellant's practice of Shi'ism; the RAD refused to admit the documents tendered as 'new evidence' because the appellant did not show they were not reasonably available at the RPD hearing and the RAD could not properly substitute a decision without the RPD record.

Citation
VB4-03383
Parties
Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
22 April 2015
Procedural Posture
Refugee Protection Appeal to RAD / Appeal Decision (set Aside and Referral to RPD for Redetermination)
Outcome
appeal allowed; RPD determination set aside and claim referred to RPD for redetermination by a differently constituted panel
Legal Topics
Convention Refugee, Person in Need of Protection, Credibility Findings, Admission of New Evidence, Standard of Review, Referral for Redetermination
Source Language
English
Immigration Refugee Law Administrative Law Convention Refugee Person in Need of Protection Credibility Findings Admission of New Evidence Standard of Review +1 more

Case Brief

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Parties

XXXX XXXX

Appellant

Procedural Posture

Refugee Protection Appeal to RAD / Appeal Decision (set Aside and Referral to RPD for Redetermination)

Legal Issues

  1. 1 whether there is nexus to a Convention ground (religion)
  2. 2 whether the RPD adequately assessed credibility of appellant's practice of Shi'ism
  3. 3 whether documents tendered at RAD qualify as 'new evidence' under s.110(4)

Ratio Decidendi

The RAD allowed the appeal, set aside the RPD determination and referred the claim to the RPD for redetermination because the RPD erred in finding no nexus to a Convention ground and failed to provide adequate reasons for its credibility finding regarding the appellant's practice of Shi'ism; the RAD refused to admit the documents tendered as 'new evidence' because the appellant did not show they were not reasonably available at the RPD hearing and the RAD could not properly substitute a decision without the RPD record.

Court Disposition

appeal allowed; RPD determination set aside and claim referred to RPD for redetermination by a differently constituted panel

Orders

  • Referral of the claim back to the Refugee Protection Division for redetermination by a different member pursuant to s.111(1)(c) of the Act
  • Refusal to admit the four documents tendered as new evidence at RAD under s.110(4) (documents not shown to be unavailable at RPD hearing)