TB9-02253

TB9-02253

The RAD allowed the principal appellant's appeal because the RPD denied procedural fairness by failing to put material inconsistencies to the principal appellant and give her an opportunity to explain; because those inconsistencies are material and the RAD cannot fairly determine credibility on the existing record, the RAD set aside the RPD decision and remitted the principal's claim to the RPD under s.111(1)(c) IRPA. The RAD dismissed the minor appellant's appeal and confirmed the RPD on her claim under s.111(1)(a) IRPA.

Citation
TB9-02253
Parties
Principal Appellant: XXXX XXXX; Minor Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
27 July 2020
Procedural Posture
Refugee Protection Appeal to Refugee Appeal Division / Appeal Heard and Decision Rendered by RAD
Outcome
Principal appellant: appeal allowed, RPD decision set aside and matter remitted to RPD under s.111(1)(c) IRPA for redetermination by a differently constituted panel; Minor appellant: appeal dismissed and RPD decision confirmed under s.111(1)(a) IRPA.
Legal Topics
Credibility Assessment, Procedural Fairness, Female Genital Mutilation, Remand for Redetermination
Source Language
English
Immigration Refugee Law Administrative Law Credibility Assessment Procedural Fairness Female Genital Mutilation Remand for Redetermination

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Protection Appeal to Refugee Appeal Division / Appeal Heard and Decision Rendered by RAD

Legal Issues

  1. 1 Whether the RPD made credibility assessment errors in the principal appellant's claim
  2. 2 Whether the RPD erred in rejecting the minor appellant's claim
  3. 3 Whether the RAD can substitute its own decision or must remit under s.111(1)(c) IRPA

Ratio Decidendi

The RAD allowed the principal appellant's appeal because the RPD denied procedural fairness by failing to put material inconsistencies to the principal appellant and give her an opportunity to explain; because those inconsistencies are material and the RAD cannot fairly determine credibility on the existing record, the RAD set aside the RPD decision and remitted the principal's claim to the RPD under s.111(1)(c) IRPA. The RAD dismissed the minor appellant's appeal and confirmed the RPD on her claim under s.111(1)(a) IRPA.

Court Disposition

Principal appellant: appeal allowed, RPD decision set aside and matter remitted to RPD under s.111(1)(c) IRPA for redetermination by a differently constituted panel; Minor appellant: appeal dismissed and RPD decision confirmed under s.111(1)(a) IRPA.

Orders

  • Set aside RPD decision as to principal appellant and refer principal appellant's claim back to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA
  • Dismiss the minor appellant's appeal and confirm the RPD decision that the minor appellant is neither a Convention refugee nor a person in need of protection pursuant to s.111(1)(a) IRPA