MB8-24651

MB8-24651

The RAD allowed the appeal because the RPD erred by focusing on peripheral or irrelevant considerations (morality, legality, Pride attendance, partner's university attendance) and failed to meaningfully assess whether the Principal Appellant has the profile of a person of non-conforming sexual orientation; because the RAD could not properly substitute a decision on the existing record and no new evidence under s.110(4) IRPA was admitted, the appropriate remedy was to remit the matter to the RPD for redetermination by a differently constituted panel.

Citation
MB8-24651
Parties
Principal Appellant: XXXX XXXX XXXX XXXXXXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX); Associate Appellant: XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX); Minor Appellant: XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
19 February 2020
Procedural Posture
Refugee Appeal Under the Immigration and Refugee Protection Act / Appeal to Refugee Appeal Division (rad); Remitted to Refugee Protection Division (rpd) for Redetermination
Outcome
Appeal allowed and matter referred back to the RPD for redetermination by a differently constituted panel
Legal Topics
Credibility Assessment, Sexual Orientation and Gender Identity, Convention Refugee, Risk of Persecution, Remission to Tribunal
Source Language
English
Immigration Law Refugee Law Administrative Law Human Rights Credibility Assessment Sexual Orientation and Gender Identity Convention Refugee Risk of Persecution +1 more

Case Brief

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Parties

XXXX XXXX XXXX XXXXXXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX)

Principal Appellant

XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX)

Associate Appellant

XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX)

Minor Appellant

Procedural Posture

Refugee Appeal Under the Immigration and Refugee Protection Act / Appeal to Refugee Appeal Division (rad); Remitted to Refugee Protection Division (rpd) for Redetermination

Legal Issues

  1. 1 Whether the RPD erred in assessing credibility of the Principal Appellant's sexual orientation claim
  2. 2 Whether peripheral considerations (age of partner, morality, Pride attendance, delay) justified negative credibility findings
  3. 3 Whether Associate and Minor Appellants' claims stand independent of Principal Appellant's credibility

Ratio Decidendi

The RAD allowed the appeal because the RPD erred by focusing on peripheral or irrelevant considerations (morality, legality, Pride attendance, partner's university attendance) and failed to meaningfully assess whether the Principal Appellant has the profile of a person of non-conforming sexual orientation; because the RAD could not properly substitute a decision on the existing record and no new evidence under s.110(4) IRPA was admitted, the appropriate remedy was to remit the matter to the RPD for redetermination by a differently constituted panel.

Court Disposition

Appeal allowed and matter referred back to the RPD for redetermination by a differently constituted panel

Orders

  • Appeal allowed
  • Matter referred back to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act