MB9-04363

MB9-04363

The RPD improperly discounted certain documentary evidence without independent assessment; because credibility issues, unresolved allegations of former counsel incompetence and the undecided IFA remain, the RAD could not substitute a positive decision and must allow the appeal and refer the matter to the RPD for...

Source-derived case information.

Citation
MB9-04363
Parties
Principal Appellant: XXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX; Minor American Appellant: XXXX XXXX XXXX; Minor Nigerian Appellant: XXXX XXXX XXXX; Respondent: Minister (Canada)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
31 October 2019
Procedural Posture
Refugee Protection Appeal / RAD Decision Referring Matter to RPD for Redetermination
Outcome
Appeal allowed; matter referred to the Refugee Protection Division for redetermination by a differently constituted panel
Legal Topics
Female Genital Mutilation, Credibility Assessment, Documentary Evidence, Internal Flight Alternative, New Evidence, Incompetence of Counsel, Referral for Redetermination
Source Language
english
Immigration Law Refugee Law Administrative Law Female Genital Mutilation Credibility Assessment Documentary Evidence Internal Flight Alternative New Evidence +2 more

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Summary, issues, holding and outcome

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Associate Appellant

XXXX XXXX XXXX

Minor American Appellant

XXXX XXXX XXXX

Minor Nigerian Appellant

Minister (Canada)

Respondent

Procedural Posture

Refugee Protection Appeal / RAD Decision Referring Matter to RPD for Redetermination

Legal Issues

  1. 1 Whether the RPD erred by discounting documentary evidence without independent assessment
  2. 2 Whether the RAD can confirm, substitute or must refer the RPD decision given remaining credibility and other unresolved issues
  3. 3 Whether internal flight alternative (IFA) was properly considered or remains undecided

Ratio Decidendi

The RPD improperly discounted certain documentary evidence without independent assessment; because credibility issues, unresolved allegations of former counsel incompetence and the undecided IFA remain, the RAD could not substitute a positive decision and must allow the appeal and refer the matter to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA.

Court Disposition

Appeal allowed; matter referred to the Refugee Protection Division for redetermination by a differently constituted panel

Orders

  • Appeal allowed and matter referred to the RPD for redetermination by a differently constituted panel pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act.
  • RPD directed to consider all evidence on the record and all issues, including but not limited to: (a) the credibility of the Appellants' documentary evidence; (b) the Appellants' allegations of incompetence against their former counsel; and (c) the issue of internal flight alternative and the impact of the Principal...