TB7-06891

TB7-06891

The RAD found the RPD erred by imposing an inappropriate rigid label and by relying on peripheral inconsistencies and an insufficient implausibility finding to reject the Appellant's evidence of sexual orientation; because credibility errors affected the core claim the principal's appeal is allowed and referred back to the RPD for re‑determination, while the minors' appeals are dismissed for failing to show risk of FGM or removal.

Citation
TB7-06891
Parties
Principal Appellant: XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX); Minor Appellant: XXXX XXXX (a.k.a. XXXX XXXX XXXX)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
8 November 2017
Procedural Posture
Refugee Protection Appeal (rad Review of RPD Decision) / Decision by RAD (principal Allowed and Referred Back to Rpd; Minors Appeals Dismissed)
Outcome
Principal Appellant's appeal allowed and referred back to the RPD for re-determination by a differently constituted panel; Minor Appellants' appeals dismissed; request for RAD oral hearing denied.
Legal Topics
Sexual Orientation and Gender Identity (sogie), Credibility Findings, Female Genital Mutilation (fgm), Standard of Review, Referral for Re Determination, Oral Hearing Request
Source Language
English
Immigration Refugee Law Administrative Law Human Rights Sexual Orientation and Gender Identity (sogie) Credibility Findings Female Genital Mutilation (fgm) Standard of Review +2 more

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Parties

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

Principal Appellant

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

Minor Appellant

Procedural Posture

Refugee Protection Appeal (rad Review of RPD Decision) / Decision by RAD (principal Allowed and Referred Back to Rpd; Minors Appeals Dismissed)

Legal Issues

  1. 1 Whether the RPD erred in credibility findings regarding the principal Appellant's sexual orientation
  2. 2 Whether the principal Appellant established a well-founded fear of persecution or risk of arrest in Nigeria
  3. 3 Whether the minor Appellants face risk of female genital mutilation or removal from custody

Ratio Decidendi

The RAD found the RPD erred by imposing an inappropriate rigid label and by relying on peripheral inconsistencies and an insufficient implausibility finding to reject the Appellant's evidence of sexual orientation; because credibility errors affected the core claim the principal's appeal is allowed and referred back to the RPD for re‑determination, while the minors' appeals are dismissed for failing to show risk of FGM or removal.

Court Disposition

Principal Appellant's appeal allowed and referred back to the RPD for re-determination by a differently constituted panel; Minor Appellants' appeals dismissed; request for RAD oral hearing denied.

Orders

  • Refer the principal Appellant's claim back to the Refugee Protection Division for re-determination by a differently constituted panel pursuant to s.111(1)(c) of the IRPA
  • Confirm the RPD determination regarding the minor Appellants pursuant to s.111(1)(a) of the IRPA