MB3-01977

MB3-01977

The RAD found the RPD made unreasonable findings on credibility and failed to consider IRB Guideline 4 when it insisted on corroboration without considering the context of gender-related violence and human trafficking; the new evidence submitted on appeal was inadmissible; because the RAD could not fairly substitute its own credibility findings without hearing the viva voce evidence, the RAD allowed the appeal, set aside the RPD determination and referred the matter to a differently constituted RPD panel for re-determination with directions to consider Guideline 4.

Citation
MB3-01977
Parties
Principal Appellant: XXXX XXXX XXXX; Minor Appellant (daughter): XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
6 August 2013
Procedural Posture
Refugee Protection Appeal (refugee Appeal Division) / Decision Allowing Appeal, Setting Aside RPD Determination and Referring Matter for Re Determination
Outcome
Appeal allowed; RPD determination set aside; matter referred to a differently constituted Refugee Protection Division panel for re-determination with directions to consider IRB Guideline 4
Legal Topics
Credibility Assessment, Gender Related Persecution (guideline 4), Admissibility of New Evidence, Vulnerable Persons Procedures, Standard of Review, Referral for Redetermination
Source Language
English
Immigration Law Refugee Law Administrative Law Procedural Fairness Credibility Assessment Gender Related Persecution (guideline 4) Admissibility of New Evidence Vulnerable Persons Procedures +2 more

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX

Minor Appellant (daughter)

Procedural Posture

Refugee Protection Appeal (refugee Appeal Division) / Decision Allowing Appeal, Setting Aside RPD Determination and Referring Matter for Re Determination

Legal Issues

  1. 1 Whether the RPD rendered an incoherent/unintelligible decision contrary to procedural fairness
  2. 2 Whether the RPD failed to consider IRB Guideline 4 (Women Claimants Fearing Gender-Related Persecution)
  3. 3 Whether the RPD made unreasonable credibility findings without analysing documentary evidence on human trafficking

Ratio Decidendi

The RAD found the RPD made unreasonable findings on credibility and failed to consider IRB Guideline 4 when it insisted on corroboration without considering the context of gender-related violence and human trafficking; the new evidence submitted on appeal was inadmissible; because the RAD could not fairly substitute its own credibility findings without hearing the viva voce evidence, the RAD allowed the appeal, set aside the RPD determination and referred the matter to a differently constituted RPD panel for re-determination with directions to consider Guideline 4.

Court Disposition

Appeal allowed; RPD determination set aside; matter referred to a differently constituted Refugee Protection Division panel for re-determination with directions to consider IRB Guideline 4

Orders

  • Appeal allowed and RPD determination set aside
  • Matter referred to a differently constituted RPD panel for re-determination specifically taking into account IRB Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution