MC0-10751

MC0-10751

The RAD found the RPD erred by drawing adverse inferences from omissions in the BOC form that did not go to the essential elements of the protection claim; although one omission (the alleged assault) undermined credibility on that discrete incident, it did not render the entire claim inherently incredible. Because the RPD failed to address the appellants' fear of the husband's family (including risk of FGM to the daughter) and further questioning is required which the RAD cannot conduct, the RAD set aside the RPD decision and referred the matter to a differently constituted RPD panel for rehearing.

Citation
MC0-10751
Parties
Principal Appellant: XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX; Associate Appellant (minor Daughter): XXXX XXXX XXXX XXXX XXXX; Associate Appellant (minor Son): XXXX XXXX XXXX XXXX XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
11 March 2021
Procedural Posture
Refugee Appeal / Decision (rad)
Outcome
Appeal allowed; RPD decision set aside and matter referred to a differently constituted panel of the RPD for rehearing.
Legal Topics
Credibility Assessment, Female Genital Mutilation (fgm), Domestic Violence, Standard of Review, Referral for Rehearing
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Assessment Female Genital Mutilation (fgm) Domestic Violence Standard of Review Referral for Rehearing

Case Brief

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Parties

XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX XXXX XXXX

Associate Appellant (minor Daughter)

XXXX XXXX XXXX XXXX XXXX

Associate Appellant (minor Son)

Minister

Respondent

Procedural Posture

Refugee Appeal / Decision (rad)

Legal Issues

  1. 1 Whether the RPD erred in its credibility assessment of the principal appellant
  2. 2 Whether the RPD erred by relying on that credibility assessment to dismiss the minors' protection claims
  3. 3 Whether the RAD must set aside and refer the matter to the RPD for reconsideration

Ratio Decidendi

The RAD found the RPD erred by drawing adverse inferences from omissions in the BOC form that did not go to the essential elements of the protection claim; although one omission (the alleged assault) undermined credibility on that discrete incident, it did not render the entire claim inherently incredible. Because the RPD failed to address the appellants' fear of the husband's family (including risk of FGM to the daughter) and further questioning is required which the RAD cannot conduct, the RAD set aside the RPD decision and referred the matter to a differently constituted RPD panel for rehearing.

Court Disposition

Appeal allowed; RPD decision set aside and matter referred to a differently constituted panel of the RPD for rehearing.

Orders

  • Set aside the Refugee Protection Division decision and refer the matter to a differently constituted panel of the RPD pursuant to subsection 111(1)(b) IRPA.