MB9-02921

MB9-02921

The RAD allowed the appeal because the RPD materially erred in assessing the Principal Appellant's credibility by misconstruing and ignoring evidence, breaching procedural fairness by failing to raise and test concerns about post‑hearing material, and failing to assess the Appellant's profile in the context of Libya's country conditions; the RAD admitted new evidence as meeting the test for admissibility and found on the balance of probabilities that the Appellants face a real risk of kidnapping or murder and lack state protection, thus substituting its determination that they are Convention refugees under s.111(1)(b) IRPA.

Citation
MB9-02921
Parties
Principal Appellant: XXXX XXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
15 October 2019
Procedural Posture
Refugee Appeal Under Immigration and Refugee Protection Act / Refugee Appeal Division Decision (reasons and Disposition)
Outcome
Appeal allowed; RPD decision set aside; RAD substitutes its decision that the Appellants are Convention refugees
Legal Topics
Credibility Assessment, Admission of New Evidence, Procedural Fairness, Risk Assessment, State Protection, Internal Flight Alternative, Convention Refugee Determination
Source Language
English
Immigration Law Refugee Law Administrative Law Evidence Law Credibility Assessment Admission of New Evidence Procedural Fairness Risk Assessment +3 more

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Parties

XXXX XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX XXXX

Associate Appellant

Procedural Posture

Refugee Appeal Under Immigration and Refugee Protection Act / Refugee Appeal Division Decision (reasons and Disposition)

Legal Issues

  1. 1 Whether the RPD erred in its credibility assessment of the Principal Appellant
  2. 2 Whether the RAD should admit post‑decision/new evidence under RAD rules and IRPA
  3. 3 Whether the RPD breached the duty of procedural fairness by not putting concerns to the Appellant and by relying on negative inferences from post‑hearing material

Ratio Decidendi

The RAD allowed the appeal because the RPD materially erred in assessing the Principal Appellant's credibility by misconstruing and ignoring evidence, breaching procedural fairness by failing to raise and test concerns about post‑hearing material, and failing to assess the Appellant's profile in the context of Libya's country conditions; the RAD admitted new evidence as meeting the test for admissibility and found on the balance of probabilities that the Appellants face a real risk of kidnapping or murder and lack state protection, thus substituting its determination that they are Convention refugees under s.111(1)(b) IRPA.

Court Disposition

Appeal allowed; RPD decision set aside; RAD substitutes its decision that the Appellants are Convention refugees

Orders

  • Set aside the Refugee Protection Division determination
  • Admit specified new evidence pursuant to RAD Rules and IRPA (affidavits, certifications, ICC letter and exhibits listed in reasons)