MB9-28672

MB9-28672

The RAD determined the RPD erred by basing adverse credibility solely on the appellants' failure to claim asylum in multiple transit countries and by engaging in an unfair, microscopic review that failed to consider the Basis of Claim evidence, prospective risk and other explanations; therefore the decision was incorrect and the appeal is allowed with remittal for redetermination by a differently constituted RPD panel.

Citation
MB9-28672
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
13 November 2020
Procedural Posture
Refugee Protection Appeal / Appeal Decision Remitted for Redetermination
Outcome
appeal allowed; matter referred for redetermination by a differently constituted RPD panel
Legal Topics
Failure to Claim Asylum in Transit Countries, Natural Justice, Credibility Findings, Remittal for Redetermination, Oral Hearing New Evidence
Source Language
English
Immigration Law Refugee Law Administrative Law Procedural Fairness Credibility Assessment Failure to Claim Asylum in Transit Countries Natural Justice Credibility Findings +2 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant

Procedural Posture

Refugee Protection Appeal / Appeal Decision Remitted for Redetermination

Legal Issues

  1. 1 Did the RPD fail to observe principles of natural justice?
  2. 2 Did the RPD err in assessing the appellants' credibility?
  3. 3 Is failure to claim asylum in transit countries a determinative factor to reject a claim?

Ratio Decidendi

The RAD determined the RPD erred by basing adverse credibility solely on the appellants' failure to claim asylum in multiple transit countries and by engaging in an unfair, microscopic review that failed to consider the Basis of Claim evidence, prospective risk and other explanations; therefore the decision was incorrect and the appeal is allowed with remittal for redetermination by a differently constituted RPD panel.

Court Disposition

appeal allowed; matter referred for redetermination by a differently constituted RPD panel

Orders

  • Appeal allowed and decision of the RPD set aside.
  • Matter referred for redetermination by a differently constituted RPD panel.