TB7-19578

TB7-19578

The RPD's adverse credibility finding against the Principal Appellant lacked adequate reasons and the RPD misapplied the Rasaratnam IFA test; these determinative errors required remitting the Principal Appellant's and minor female Appellant's claims to a differently‑constituted RPD for redetermination; the minor male Appellant's appeal was dismissed because no risk was advanced on his behalf and speculative separation-related psychological harm was unsupported by evidence.

Citation
TB7-19578
Parties
Principal Appellant: XXXX XXXX XXXX; Minor Male Appellant: XXXX XXXX XXXX; Minor Female Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
20 March 2018
Procedural Posture
Refugee Protection Appeal (refugee Appeal Division) / Decision on Appeal; Referral to Refugee Protection Division for Redetermination
Outcome
Appeal allowed in part; appeal allowed for Principal Appellant and minor female Appellant by referral to RPD for redetermination by a differently‑constituted panel; appeal dismissed for minor male Appellant.
Legal Topics
Refugee Protection, Convention Refugee, Internal Flight Alternative, Credibility Findings, Female Genital Mutilation, Best Interests of the Child, Procedural Fairness, Standard of Review
Source Language
English
Immigration Law Refugee Law Human Rights Law Administrative Law Refugee Protection Convention Refugee Internal Flight Alternative Credibility Findings +4 more

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Minor Male Appellant

XXXX XXXX XXXX

Minor Female Appellant

Procedural Posture

Refugee Protection Appeal (refugee Appeal Division) / Decision on Appeal; Referral to Refugee Protection Division for Redetermination

Legal Issues

  1. 1 Whether the RPD erred in making an unexplained adverse credibility finding regarding the Principal Appellant
  2. 2 Whether the RPD misapplied the Internal Flight Alternative (IFA) test
  3. 3 Whether the minor male Appellant's claim required independent assessment and whether separation could amount to torture

Ratio Decidendi

The RPD's adverse credibility finding against the Principal Appellant lacked adequate reasons and the RPD misapplied the Rasaratnam IFA test; these determinative errors required remitting the Principal Appellant's and minor female Appellant's claims to a differently‑constituted RPD for redetermination; the minor male Appellant's appeal was dismissed because no risk was advanced on his behalf and speculative separation-related psychological harm was unsupported by evidence.

Court Disposition

Appeal allowed in part; appeal allowed for Principal Appellant and minor female Appellant by referral to RPD for redetermination by a differently‑constituted panel; appeal dismissed for minor male Appellant.

Orders

  • Allow appeal in respect of the Principal Appellant and minor female Appellant and refer the matter to the Refugee Protection Division for redetermination by a differently‑constituted panel.
  • Direct the RPD on redetermination to include the transcript of the July 13, 2017 hearing.