TB9-26280

TB9-26280

RAD set aside the RPD decision because the central adverse credibility and implausibility findings were based on errors of fact and failure to consider evidence and cultural context, and because it was unreasonable to draw a negative inference from the Appellants' failure to claim asylum in the USA; on the corrected assessment the Appellants established a well‑founded fear and are Convention refugees.

Citation
TB9-26280
Parties
Principal Appellant: XXXX XXXX (Principal Appellant); Associate Appellant (spouse): XXXX XXXX XXXX (Associate Appellant); Minor Appellant (child): XXXX XXXX XXXX (Minor Appellant)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
11 December 2019
Procedural Posture
Refugee Protection Appeal (rad Review of RPD Decision) / Decision on Appeal RAD Substituted Determination
Outcome
Appeal allowed; RPD decision set aside and substituted
Legal Topics
Credibility Assessment, Admissibility of New Evidence (s.110(4) Irpa), Procedural Fairness and Bias, SOGIE Guidelines Application, Internal Flight Alternative, State Protection Assessment, Standard of Review (rad V Rpd)
Source Language
English
Immigration Law Refugee Law Human Rights Administrative Law Lgbtq+ Rights Credibility Assessment Admissibility of New Evidence (s.110(4) Irpa) Procedural Fairness and Bias +4 more

Case Brief

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Parties

XXXX XXXX (Principal Appellant)

Principal Appellant

XXXX XXXX XXXX (Associate Appellant)

Associate Appellant (spouse)

XXXX XXXX XXXX (Minor Appellant)

Minor Appellant (child)

Procedural Posture

Refugee Protection Appeal (rad Review of RPD Decision) / Decision on Appeal RAD Substituted Determination

Legal Issues

  1. 1 Whether proposed new evidence met subsection 110(4) IRPA and Singh/Raza criteria
  2. 2 Whether RAD should grant an oral hearing on appeal
  3. 3 Whether RPD breached procedural fairness or displayed bias

Ratio Decidendi

RAD set aside the RPD decision because the central adverse credibility and implausibility findings were based on errors of fact and failure to consider evidence and cultural context, and because it was unreasonable to draw a negative inference from the Appellants' failure to claim asylum in the USA; on the corrected assessment the Appellants established a well‑founded fear and are Convention refugees.

Court Disposition

Appeal allowed; RPD decision set aside and substituted

Orders

  • Set aside Refugee Protection Division decision dated August 21, 2019
  • Substitute determination that the Appellants are Convention refugees pursuant to paragraph 111(1)(b) of the IRPA