VB9-02694

VB9-02694

Because appellants raised a materially different legal issue (a section 96 gender-based persecution claim for the Associate Appellant) supported by new evidence that was not adjudicated by the RPD, fairness requires returning the matter to the RPD for redetermination rather than the RAD substituting a final decision; allegations of counsel incompetence did not by themselves justify referral in this case.

Citation
VB9-02694
Parties
Principal Appellant: XXXX XXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
9 September 2020
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Decision on Appeal; RPD Decision Set Aside and Referred Back for Redetermination
Outcome
RPD decision set aside and claims referred back to the RPD for redetermination
Legal Topics
Internal Flight Alternative (ifa), Section 96 Convention Ground (gender Based Persecution), Procedural Fairness, Counsel Competence, Admissibility of New Evidence, RAD Oral Hearing Authority, Referral to RPD
Source Language
English
Immigration Law Refugee Law Administrative Law Internal Flight Alternative (ifa) Section 96 Convention Ground (gender Based Persecution) Procedural Fairness Counsel Competence Admissibility of New Evidence +2 more

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Parties

XXXX XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Associate Appellant

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Decision on Appeal; RPD Decision Set Aside and Referred Back for Redetermination

Legal Issues

  1. 1 Whether new evidence and a new legal issue (section 96 gender-based persecution) require referral back to the RPD rather than final disposition by the RAD
  2. 2 Whether alleged incompetence of former counsel established a breach of procedural fairness requiring referral
  3. 3 Whether an IFA in Mexico City was properly found by the RPD

Ratio Decidendi

Because appellants raised a materially different legal issue (a section 96 gender-based persecution claim for the Associate Appellant) supported by new evidence that was not adjudicated by the RPD, fairness requires returning the matter to the RPD for redetermination rather than the RAD substituting a final decision; allegations of counsel incompetence did not by themselves justify referral in this case.

Court Disposition

RPD decision set aside and claims referred back to the RPD for redetermination

Orders

  • Claim to be heard by a different RPD panel if possible
  • Referral back is not an instruction to allow or dismiss the claim