Federal Court


Immigration and Citizenship

Refugee protection

Appeal or redetermination of claim

Findings of Refugee Appeal Division denying application for judicial review entitled to deference

Applicant, citizen of Kyrgyzstan, claimed refugee protection based on fear of violence from state and non-state extortionists that had resulted in him being beaten and hospitalized three times. Refugee Protection Division (RPD) found applicant’s story was not credible and rejected claim. Applicant appealed, submitting new evidence consisting of letter from witness to, and hospital records arising from, attack on wife and son. Refugee Appeal Division (RAD) found evidence did not raise serious issue as to credibility, denied oral hearing and affirmed decision of RPD. On application for judicial review, court found RAD had erred in its assessment of evidence by focusing on what it did not as opposed to what it did say and ordered redetermination before different panel. Second panel of RAD found new evidence was not credible, denied oral hearing and again affirmed decision of RPD. Applicant brought further application for judicial review. Application dismissed. RAD’s findings in regard to new evidence, including with respect to credibility, were entitled to significant deference. Such findings were not reached in vacuum but on totality of evidence which, in this case, included admittedly fraudulent claim made abroad. RAD’s findings were reasonable in circumstances and rendered decision with respect to oral hearing reasonable.

Belek v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 649, 2017 FC 196, Alan S. Diner J. (F.C.).

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