TB5-06648

TB5-06648

The RAD allowed the appeal because the RPD breached procedural fairness by failing to consider post‑hearing evidence and made unsupported findings (adverse inference re Japan and speculative medical conclusions); unresolved credibility issues remain so the RAD cannot properly substitute a positive refugee...

Source-derived case information.

Citation
TB5-06648
Parties
Appellant: XXXX XXXX; Second Appellant: XXXX XXXX; Minor Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
30 September 2015
Procedural Posture
Refugee Protection Appeal Under IRPA / Appeal to Refugee Appeal Division; RAD Decision to Refer Back to RPD for Redetermination
Outcome
Appeal allowed; RPD decision set aside; matter referred to RPD for re‑determination by a differently constituted panel.
Legal Topics
Procedural Fairness, Post‑hearing Evidence, Credibility, Forced Abortion/sterilization, Family Planning Policy, Judicial Review Vs. Hybrid Appeal, Remedy: Referral
Source Language
english
Immigration Law Refugee Law Administrative Law Procedural Fairness Post‑hearing Evidence Credibility Forced Abortion/sterilization Family Planning Policy +2 more

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Parties

XXXX XXXX

Appellant

XXXX XXXX

Second Appellant

XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Protection Appeal Under IRPA / Appeal to Refugee Appeal Division; RAD Decision to Refer Back to RPD for Redetermination

Legal Issues

  1. 1 Whether the RPD breached procedural fairness by failing to consider post‑hearing evidence
  2. 2 Whether the RPD erred in drawing an adverse inference from failure to claim in Japan
  3. 3 Whether the RPD's finding regarding inability to sterilize due to bleeding was speculative and unsupported

Ratio Decidendi

The RAD allowed the appeal because the RPD breached procedural fairness by failing to consider post‑hearing evidence and made unsupported findings (adverse inference re Japan and speculative medical conclusions); unresolved credibility issues remain so the RAD cannot properly substitute a positive refugee determination and therefore sets aside the RPD decision and refers the matter to the RPD for re‑determination by a differently constituted panel pursuant to s.111(1)(c) IRPA.

Court Disposition

Appeal allowed; RPD decision set aside; matter referred to RPD for re‑determination by a differently constituted panel.

Orders

  • Set aside the decision of the Refugee Protection Division.
  • Refer the matter to the Refugee Protection Division for re‑determination by a differently constituted panel pursuant to subsection 111(1)(c) of IRPA.