MB9-21962

MB9-21962

The new evidence was inadmissible under s.110(4) IRPA and an oral hearing was therefore not warranted, but on independent assessment applying the correctness standard the RAD found the RPD erred in certain microscopic credibility inferences and, on the whole record, the Appellants face a personalized risk to life or cruel and unusual treatment from their cousin and associates; state protection and internal flight alternatives are inadequate, so the Appellants are persons in need of protection under paragraph 97(1)(b) IRPA and the RAD substitutes that determination.

Citation
MB9-21962
Parties
Appellant Principal: XXXX XXXX XXXX XXXX; Appellant Minor: XXXX XXXX XXXX XXXX; Respondent Minister: Minister of Immigration
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
11 March 2020
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Decision on Appeal; RAD Substituted RPD Determination
Outcome
Appeal allowed; RAD sets aside RPD decision and substitutes its own decision that the Appellants are persons in need of protection under paragraph 97(1)(b) IRPA.
Legal Topics
Credibility Assessment, New Evidence Admissibility, Allegation of Bias, State Protection, Internal Flight Alternative, Oral Hearing Request
Source Language
English
Immigration and Refugee Law Administrative Law Evidence Law Child Protection Credibility Assessment New Evidence Admissibility Allegation of Bias State Protection +2 more

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Parties

XXXX XXXX XXXX XXXX

Appellant Principal

XXXX XXXX XXXX XXXX

Appellant Minor

Minister of Immigration

Respondent Minister

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Decision on Appeal; RAD Substituted RPD Determination

Legal Issues

  1. 1 Whether the new evidence is admissible under subsection 110(4) IRPA
  2. 2 Whether there was a reasonable apprehension of bias by the RPD member
  3. 3 Whether the RPD erred in its credibility findings by relying on microscopic discrepancies

Ratio Decidendi

The new evidence was inadmissible under s.110(4) IRPA and an oral hearing was therefore not warranted, but on independent assessment applying the correctness standard the RAD found the RPD erred in certain microscopic credibility inferences and, on the whole record, the Appellants face a personalized risk to life or cruel and unusual treatment from their cousin and associates; state protection and internal flight alternatives are inadequate, so the Appellants are persons in need of protection under paragraph 97(1)(b) IRPA and the RAD substitutes that determination.

Court Disposition

Appeal allowed; RAD sets aside RPD decision and substitutes its own decision that the Appellants are persons in need of protection under paragraph 97(1)(b) IRPA.

Orders

  • Set aside the RPD determination dated August 16, 2019
  • Substitute RAD determination that the Appellants are persons in need of protection under paragraph 97(1)(b) of the IRPA