MB3-04952

MB3-04952

The RAD allowed the appeal because the RPD unreasonably failed to consider a material piece of documentary evidence (the appellant's mother's letter alleging spells/voodoo caused the father's death) and did not adequately assess the issue of sincerity regarding belief in witchcraft; that omission undermined the RPD's central finding that the appellant faced no real risk, so the RPD decision was set aside and the claim referred to a differently constituted panel for redetermination (the RAD cannot substitute its own credibility determination without a hearing).

Citation
MB3-04952
Parties
Person Who Is the Subject of the Appeal (appellant): XXXX XXXX XXXX; Intervenor / Respondent: Minister of Public Safety Canada
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
8 April 2014
Procedural Posture
Refugee Appeal (rad Review of RPD Decision) / Decision on Appeal (appeal Allowed; Matter Referred for Redetermination)
Outcome
Appeal allowed; RPD determination set aside and matter referred for re-determination by a differently constituted panel
Legal Topics
Credibility Assessment, Admissibility of Evidence on Appeal (s.110(4) Irpa), Standard of Review and Deference, Remedy — Referral for Redetermination, State Protection and Internal Flight Alternative, Claims Based on Witchcraft
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Assessment Admissibility of Evidence on Appeal (s.110(4) Irpa) Standard of Review and Deference Remedy — Referral for Redetermination State Protection and Internal Flight Alternative +1 more

Case Brief

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Parties

XXXX XXXX XXXX

Person Who Is the Subject of the Appeal (appellant)

Minister of Public Safety Canada

Intervenor / Respondent

Procedural Posture

Refugee Appeal (rad Review of RPD Decision) / Decision on Appeal (appeal Allowed; Matter Referred for Redetermination)

Legal Issues

  1. 1 Whether the RPD erred in its credibility assessment regarding witchcraft allegations and failed to assess sincerity
  2. 2 Whether documents submitted on appeal were admissible under s.110(4) IRPA
  3. 3 Whether the RAD should hold a hearing under s.110(6) IRPA

Ratio Decidendi

The RAD allowed the appeal because the RPD unreasonably failed to consider a material piece of documentary evidence (the appellant's mother's letter alleging spells/voodoo caused the father's death) and did not adequately assess the issue of sincerity regarding belief in witchcraft; that omission undermined the RPD's central finding that the appellant faced no real risk, so the RPD decision was set aside and the claim referred to a differently constituted panel for redetermination (the RAD cannot substitute its own credibility determination without a hearing).

Court Disposition

Appeal allowed; RPD determination set aside and matter referred for re-determination by a differently constituted panel

Orders

  • Set aside the Refugee Protection Division decision rejecting the claim
  • Refer the matter to a differently constituted RPD panel for re-determination of the refugee protection claim having regard to the totality of the evidence