TB4-07081

TB4-07081

The RAD concluded the RPD's adverse credibility findings on material aspects of the claim were unsustainable because the RPD misconstrued and ignored evidence (affidavits and testimony regarding photographs and corroboration) and failed to provide adequate reasons for negative inferences; because the RAD could not comfortably substitute its own finding on the record, it allowed the appeals and, pursuant to s.111(1)(c) IRPA, referred the matters to the RPD for re-determination by a differently-constituted panel.

Citation
TB4-07081
Parties
Principal Claimant: XXXX XXXX XXXX; Co Appellant: XXXX XXXX XXXX; Minor Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
20 November 2014
Procedural Posture
Refugee Protection Appeal / Appeal to Refugee Appeal Division (rad) Following RPD Decision; Matter Referred Back to RPD for Re Determination
Outcome
appeal allowed in part; oral hearing denied; matter referred to the Refugee Protection Division for re-determination by a differently-constituted panel pursuant to s.111(1)(c) IRPA
Legal Topics
Credibility Findings, Sexual Orientation Asylum Claims, Gender Related Persecution, Child Claimant Procedures, Standard of Appellate Review, Section 97 Internal Flight Alternative, Procedural Fairness, Re Determination Under S.111(1)(c) IRPA
Source Language
English
Immigration Law Refugee Law Administrative Law Human Rights Credibility Findings Sexual Orientation Asylum Claims Gender Related Persecution Child Claimant Procedures +4 more

Case Brief

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Parties

XXXX XXXX XXXX

Principal Claimant

XXXX XXXX XXXX

Co Appellant

XXXX XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Protection Appeal / Appeal to Refugee Appeal Division (rad) Following RPD Decision; Matter Referred Back to RPD for Re Determination

Legal Issues

  1. 1 Whether RPD erred in credibility findings regarding sexual orientation
  2. 2 Whether RPD ignored or misconstrued material evidence
  3. 3 Whether RPD improperly based adverse credibility on peripheral matters

Ratio Decidendi

The RAD concluded the RPD's adverse credibility findings on material aspects of the claim were unsustainable because the RPD misconstrued and ignored evidence (affidavits and testimony regarding photographs and corroboration) and failed to provide adequate reasons for negative inferences; because the RAD could not comfortably substitute its own finding on the record, it allowed the appeals and, pursuant to s.111(1)(c) IRPA, referred the matters to the RPD for re-determination by a differently-constituted panel.

Court Disposition

appeal allowed in part; oral hearing denied; matter referred to the Refugee Protection Division for re-determination by a differently-constituted panel pursuant to s.111(1)(c) IRPA

Orders

  • Oral hearing before RAD denied pursuant to IRPA s.110(6) due to no new evidence pursuant to s.110(4)
  • Matter referred to Refugee Protection Division for re-determination by a differently-constituted panel pursuant to IRPA s.111(1)(c)