MB4-02995

MB4-02995

The RPD erred by drawing a negative inference from a minor omission/contradiction between the BOC and oral testimony and by unduly relying on delay as the decisive factor without properly considering explanations and the totality of evidence; therefore the RAD set aside the RPD determination and referred the matter to the RPD for re-determination by a differently constituted panel.

Citation
MB4-02995
Parties
Appellant / Person Who Is the Subject of the Appeal: XXXX XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
16 March 2015
Procedural Posture
Refugee Protection Appeal Under IRPA / Decision of Refugee Appeal Division Setting Aside RPD Determination and Referring Matter for Re Determination
Outcome
Appeal allowed; RPD determination set aside and matter referred to the RPD for re-determination by a differently constituted panel.
Legal Topics
Credibility Assessment, Delay in Claiming Protection, Standard of Review, Remedies (set Aside and Referral), Exclusion (article 1 E)
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Assessment Delay in Claiming Protection Standard of Review Remedies (set Aside and Referral) Exclusion (article 1 E)

Case Brief

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Parties

XXXX XXXX

Appellant / Person Who Is the Subject of the Appeal

Minister

Respondent

Procedural Posture

Refugee Protection Appeal Under IRPA / Decision of Refugee Appeal Division Setting Aside RPD Determination and Referring Matter for Re Determination

Legal Issues

  1. 1 Whether the RPD erred in its assessment of the claimant's credibility
  2. 2 Whether the delay in leaving Algeria and in claiming refugee protection justified rejection
  3. 3 Whether the RAD should substitute the RPD decision or set it aside and refer the matter for re-determination

Ratio Decidendi

The RPD erred by drawing a negative inference from a minor omission/contradiction between the BOC and oral testimony and by unduly relying on delay as the decisive factor without properly considering explanations and the totality of evidence; therefore the RAD set aside the RPD determination and referred the matter to the RPD for re-determination by a differently constituted panel.

Court Disposition

Appeal allowed; RPD determination set aside and matter referred to the RPD for re-determination by a differently constituted panel.

Orders

  • Set aside the Refugee Protection Division determination
  • Refer the matter to the Refugee Protection Division for re-determination by a differently constituted panel