TB5-05854

TB5-05854

Because the audio recording of the RPD hearing is incomplete and the missing portion contains determinative evidence on the Internal Flight Alternative, the RAD could not conduct a full independent assessment; accordingly under s.111(c) IRPA the matter must be referred to the RPD for re-determination by a differently-constituted panel.

Citation
TB5-05854
Parties
Principal Appellant: XXXX XXXX; Co Appellant: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
7 October 2015
Procedural Posture
Refugee Appeal / Appeal to Refugee Appeal Division (rad); Remitted to Refugee Protection Division (rpd) for Re Determination
Outcome
Appeal allowed in part; matter referred to Refugee Protection Division for re-determination by a differently-constituted panel
Legal Topics
Internal Flight Alternative, Natural Justice / Procedural Fairness, Standard of Review (hybrid Appeal), Remittal to First Instance Tribunal
Source Language
English
Immigration Refugee Law Administrative Law Procedural Fairness Internal Flight Alternative Natural Justice / Procedural Fairness Standard of Review (hybrid Appeal) Remittal to First Instance Tribunal

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

Co Appellant

Procedural Posture

Refugee Appeal / Appeal to Refugee Appeal Division (rad); Remitted to Refugee Protection Division (rpd) for Re Determination

Legal Issues

  1. 1 Whether failure to record hearing denied natural justice
  2. 2 Whether missing audio recording prevents full assessment of the Internal Flight Alternative
  3. 3 Whether RAD should substitute the RPD decision or remit for re-determination by a differently-constituted panel

Ratio Decidendi

Because the audio recording of the RPD hearing is incomplete and the missing portion contains determinative evidence on the Internal Flight Alternative, the RAD could not conduct a full independent assessment; accordingly under s.111(c) IRPA the matter must be referred to the RPD for re-determination by a differently-constituted panel.

Court Disposition

Appeal allowed in part; matter referred to Refugee Protection Division for re-determination by a differently-constituted panel

Orders

  • Refer the matter to the Refugee Protection Division for re-determination by a differently-constituted panel with consideration of Internal Flight Alternative (IFA)
  • Appeal allowed