MB5-03268

MB5-03268

RAD found the RPD erred by placing undue weight on a minor inconsistency (a likely slip of the tongue) and on documentary anomalies that were not sufficiently probative to underpin a finding of lack of credibility; the autopsy report was not admitted as new evidence because it was available before the RPD hearing; because RAD lacked sufficient elements to substitute its own determination it set aside the RPD decision and referred the matter to the RPD for re-determination.

Citation
MB5-03268
Parties
Appellant Principal: XXXX XXXX XXXX XXXX; Appellant Spouse: XXXX XXXX XXXX XXXX; Appellant Child: XXXX XXXX XXXX XXXX; Designated Representative: XXXX XXXX XXXX XXXX; Counsel for the Minister: N/A
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
21 April 2016
Procedural Posture
Refugee Protection Appeal / Appeal to Refugee Appeal Division; RAD Set Aside RPD Decision and Referred Matter to RPD for Redetermination
Outcome
Appeal allowed; RPD negative decision set aside; matter referred to RPD for re-determination
Legal Topics
Credibility Assessment, Admissibility of New Evidence, Standard of Review, Remand for Redetermination
Source Language
English
Immigration Law Refugee Law Administrative Law Evidence Law Credibility Assessment Admissibility of New Evidence Standard of Review Remand for Redetermination

Case Brief

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Parties

XXXX XXXX XXXX XXXX

Appellant Principal

XXXX XXXX XXXX XXXX

Appellant Spouse

XXXX XXXX XXXX XXXX

Appellant Child

XXXX XXXX XXXX XXXX

Designated Representative

N/A

Counsel for the Minister

Procedural Posture

Refugee Protection Appeal / Appeal to Refugee Appeal Division; RAD Set Aside RPD Decision and Referred Matter to RPD for Redetermination

Legal Issues

  1. 1 Whether the RPD erred in finding appellants not credible based on minor contradictions and omissions
  2. 2 Whether the autopsy report constituted new evidence admissible under IRPA s110(4)
  3. 3 Whether a hearing before the RAD should be granted under s110(6)

Ratio Decidendi

RAD found the RPD erred by placing undue weight on a minor inconsistency (a likely slip of the tongue) and on documentary anomalies that were not sufficiently probative to underpin a finding of lack of credibility; the autopsy report was not admitted as new evidence because it was available before the RPD hearing; because RAD lacked sufficient elements to substitute its own determination it set aside the RPD decision and referred the matter to the RPD for re-determination.

Court Disposition

Appeal allowed; RPD negative decision set aside; matter referred to RPD for re-determination

Orders

  • Set aside the negative decision of the Refugee Protection Division
  • Refer the matter to the Refugee Protection Division for re-determination