TB7-00524

TB7-00524

The RAD set aside the RPD's negative merits conclusion to the extent of finding the RPD's credibility finding was based on irrelevant considerations and the RPD failed to question the appellant on core matters of her sexual orientation and relationships, leaving outstanding credibility issues that cannot be resolved on the record, and therefore the appeal is allowed and the matter is referred back to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA.

Citation
TB7-00524
Parties
Principal Appellant: XXXX XXXX XXXX XXXXXXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX); Minor Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
20 April 2017
Procedural Posture
Refugee Appeal (rad Review of RPD Decision) / Appeal to Refugee Appeal Division Seeking Redetermination or Referral Back to RPD
Outcome
Appeal allowed in part; matter referred to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA; request for RAD oral hearing denied
Legal Topics
Credibility Assessment, Sexual Orientation as Convention Ground, Referral for Redetermination, Oral Hearing Admissibility
Source Language
English
Immigration Refugee Law Administrative Law Credibility Assessment Sexual Orientation as Convention Ground Referral for Redetermination Oral Hearing Admissibility

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Parties

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

Principal Appellant

XXXX XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Appeal (rad Review of RPD Decision) / Appeal to Refugee Appeal Division Seeking Redetermination or Referral Back to RPD

Legal Issues

  1. 1 Whether the RPD erred in its credibility assessment by relying on considerations irrelevant to proving the principal Appellant's sexual orientation
  2. 2 Whether the RAD should hold an oral hearing under s.110(6) IRPA in absence of new evidence
  3. 3 Whether the RAD can set aside the RPD decision or must refer the matter back for redetermination

Ratio Decidendi

The RAD set aside the RPD's negative merits conclusion to the extent of finding the RPD's credibility finding was based on irrelevant considerations and the RPD failed to question the appellant on core matters of her sexual orientation and relationships, leaving outstanding credibility issues that cannot be resolved on the record, and therefore the appeal is allowed and the matter is referred back to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA.

Court Disposition

Appeal allowed in part; matter referred to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA; request for RAD oral hearing denied

Orders

  • Refer the matter to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA
  • Deny the appellants' request for an oral hearing under s.110(6) IRPA (no new evidence submitted)