TB8-27716

TB8-27716

The RAD allowed the appeal because the RPD committed material errors: it failed to consider or mischaracterized evidence (including a Pilot News article and supporting letters), drew adverse credibility inferences without testing omissions at the hearing, inadequately explained disbelief of threats of FGM, improperly relied on the appellants' failure to seek asylum in the USA without regard to evidence, and conducted a deficient IFA analysis by neglecting to address whether there was a serious possibility of persecution or the availability of state protection in Port Harcourt; accordingly the matter must be remitted to the RPD for redetermination by a differently constituted panel.

Citation
TB8-27716
Parties
Principal Appellant: XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX); Associate Appellant: XXXX XXXX XXXX; Minor Associate Appellant: XXXX XXXX XXXX XXXX; Designated Representative: XXXX XXXX XXXX; Respondent (minister): Minister (Immigration, Refugees and Citizenship Canada)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
9 May 2019
Procedural Posture
Refugee Appeal Under Immigration and Refugee Protection Act / RAD Decision Remitting Matter to RPD for Redetermination
Outcome
Appeal allowed and matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA
Legal Topics
Credibility Assessment, Internal Flight Alternative, Female Genital Mutilation, Procedural Fairness, Corroboration of Evidence, Remittal
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Assessment Internal Flight Alternative Female Genital Mutilation Procedural Fairness Corroboration of Evidence +1 more

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Parties

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

Principal Appellant

XXXX XXXX XXXX

Associate Appellant

XXXX XXXX XXXX XXXX

Minor Associate Appellant

XXXX XXXX XXXX

Designated Representative

Minister (Immigration, Refugees and Citizenship Canada)

Respondent (minister)

Procedural Posture

Refugee Appeal Under Immigration and Refugee Protection Act / RAD Decision Remitting Matter to RPD for Redetermination

Legal Issues

  1. 1 Whether the RPD erred in its credibility assessment of the appellants
  2. 2 Whether the RPD erred in its Internal Flight Alternative (IFA) analysis by failing to address both prongs of the Rasaratnam test
  3. 3 Whether the RPD improperly relied on the appellants' failure to seek asylum in the USA to undermine subjective fear

Ratio Decidendi

The RAD allowed the appeal because the RPD committed material errors: it failed to consider or mischaracterized evidence (including a Pilot News article and supporting letters), drew adverse credibility inferences without testing omissions at the hearing, inadequately explained disbelief of threats of FGM, improperly relied on the appellants' failure to seek asylum in the USA without regard to evidence, and conducted a deficient IFA analysis by neglecting to address whether there was a serious possibility of persecution or the availability of state protection in Port Harcourt; accordingly the matter must be remitted to the RPD for redetermination by a differently constituted panel.

Court Disposition

Appeal allowed and matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA

Orders

  • Appeal allowed
  • Matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act