TB9-02779

TB9-02779

The RAD found the interpretation provided at the RPD hearing was inadequate because the use of Mandarin rather than the Appellant's Fuqing/Fuzhou dialect likely produced significant imprecision affecting critical testimony; that inadequacy prevented a fair assessment of credibility, rendering the RPD decision unlawful in procedure and justifying setting it aside and referring the matter back to the RPD under IRPA s.111(1)(c); the RAD could not substitute its own determination because unresolved credibility issues remained.

Citation
TB9-02779
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX; Designated Representative: XXXX XXXX, XXXX XXXX; Counsel for the Persons Who Are the Subject of the Appeal: Nkunda I Kabateraine; Respondent: Minister (Canada)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
3 December 2019
Procedural Posture
Refugee Protection Appeal (rad) / Appeal Heard Before Rad; Decision to Set Aside RPD Decision and Refer Matter to RPD for Redetermination
Outcome
Appeal allowed; RPD decision set aside and matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA; RAD declined to substitute a decision due to remaining credibility concerns.
Legal Topics
Adequacy of Interpretation, Procedural Fairness, Credibility Findings, Standard of Review, Referral Under IRPA S.111
Source Language
English
Immigration Law Refugee Law Administrative Law Adequacy of Interpretation Procedural Fairness Credibility Findings Standard of Review Referral Under IRPA S.111

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant

XXXX XXXX, XXXX XXXX

Designated Representative

Nkunda I Kabateraine

Counsel for the Persons Who Are the Subject of the Appeal

Minister (Canada)

Respondent

Procedural Posture

Refugee Protection Appeal (rad) / Appeal Heard Before Rad; Decision to Set Aside RPD Decision and Refer Matter to RPD for Redetermination

Legal Issues

  1. 1 Whether the RPD breached procedural fairness by providing inadequate interpretation (Mandarin vs Fuqing/Fuzhou)
  2. 2 Whether the interpretation met the required standard of being continuous, precise, competent, impartial and contemporaneous
  3. 3 Whether the RAD could substitute the RPD decision or must refer under IRPA s.111(1)(c)

Ratio Decidendi

The RAD found the interpretation provided at the RPD hearing was inadequate because the use of Mandarin rather than the Appellant's Fuqing/Fuzhou dialect likely produced significant imprecision affecting critical testimony; that inadequacy prevented a fair assessment of credibility, rendering the RPD decision unlawful in procedure and justifying setting it aside and referring the matter back to the RPD under IRPA s.111(1)(c); the RAD could not substitute its own determination because unresolved credibility issues remained.

Court Disposition

Appeal allowed; RPD decision set aside and matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA; RAD declined to substitute a decision due to remaining credibility concerns.

Orders

  • Set aside the decision of the Refugee Protection Division dated December 20, 2018.
  • Refer the matter to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act.