TB4-05101

TB4-05101

The RPD failed to apply the correct first prong of the IFA test by not addressing appellants' evidence that the Nigerian police acted as agents of the husband's persecution and the extent of his influence; because unresolved credibility issues remain and the RAD cannot properly substitute its own decision without the evidence being reheard, the RAD set aside the RPD decision and referred the matter to the RPD for redetermination by a differently‑constituted panel pursuant to s.111(1)(c) IRPA.

Citation
TB4-05101
Parties
Appellant (principal): XXXX XXXX XXXX XXXX; Appellant (minor): XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
17 September 2014
Procedural Posture
Refugee Appeal to Refugee Appeal Division / RAD Decision on Appeal Resulting in Referral to RPD for Redetermination
Outcome
Appeal allowed; RPD decision set aside and matter referred to RPD for redetermination by a differently‑constituted panel pursuant to section 111(1)(c) IRPA; RAD declines to substitute its own determination due to unresolved credibility issues.
Legal Topics
Internal Flight Alternative, Standard of Review, Credibility, Referral Under S.111 IRPA, Convention Refugee Determination
Source Language
English
Immigration Law Refugee Law Administrative Law Internal Flight Alternative Standard of Review Credibility Referral Under S.111 IRPA Convention Refugee Determination

Case Brief

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Parties

XXXX XXXX XXXX XXXX

Appellant (principal)

XXXX XXXX

Appellant (minor)

Procedural Posture

Refugee Appeal to Refugee Appeal Division / RAD Decision on Appeal Resulting in Referral to RPD for Redetermination

Legal Issues

  1. 1 Whether an internal flight alternative is unavailable where agents of persecution include corrupt state actors (police) acting on behalf of private actors
  2. 2 Whether the RPD properly applied the two‑pronged IFA test (Rasaratnam modified by s.97 IRPA)
  3. 3 Whether the RAD can substitute its own decision or must refer the matter back to the RPD given unresolved credibility issues

Ratio Decidendi

The RPD failed to apply the correct first prong of the IFA test by not addressing appellants' evidence that the Nigerian police acted as agents of the husband's persecution and the extent of his influence; because unresolved credibility issues remain and the RAD cannot properly substitute its own decision without the evidence being reheard, the RAD set aside the RPD decision and referred the matter to the RPD for redetermination by a differently‑constituted panel pursuant to s.111(1)(c) IRPA.

Court Disposition

Appeal allowed; RPD decision set aside and matter referred to RPD for redetermination by a differently‑constituted panel pursuant to section 111(1)(c) IRPA; RAD declines to substitute its own determination due to unresolved credibility issues.

Orders

  • Refer matter back to the Refugee Protection Division for redetermination by a differently‑constituted panel pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act.
  • No substitution: RAD declines to make a positive refugee or protection determination due to unresolved credibility concerns and delay issues.