MB9-04548

MB9-04548

The RAD set aside the RPD decision because the RPD committed multiple determinative errors — failing to confront the appellant with material inconsistencies between written accounts, improperly drawing negative inferences about WhatsApp evidence without allowing explanation and relying on unproven assertions about the application, and misreading the brother's complaint regarding threats to the children — and those errors cumulatively distorted the decision; accordingly the matter is referred to the RPD for a new hearing before a different member under s.111(2) IRPA.

Citation
MB9-04548
Parties
Appellants: XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX; Designated Representative: XXXX XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
18 November 2019
Procedural Posture
Refugee Protection Appeal Under IRPA / Appeal Heard by Refugee Appeal Division; Decision to Set Aside RPD Determination and Refer Matter to RPD for New Hearing
Outcome
Appeal allowed; RPD determination set aside and matter referred to the RPD for a new hearing before a different member
Legal Topics
Credibility Assessment, Standard of Review (correctness), Procedural Fairness, Referral Under S.111(2) IRPA, Political Opinion, Threats and Persecution, Use of Digital Evidence (whats App)
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Assessment Standard of Review (correctness) Procedural Fairness Referral Under S.111(2) IRPA Political Opinion +2 more

Case Brief

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Parties

XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX

Appellants

XXXX XXXX

Designated Representative

Minister

Respondent

Procedural Posture

Refugee Protection Appeal Under IRPA / Appeal Heard by Refugee Appeal Division; Decision to Set Aside RPD Determination and Refer Matter to RPD for New Hearing

Legal Issues

  1. 1 Whether the RPD erred in its credibility assessment by relying on the amended account and failing to confront the appellant with discrepancies between accounts
  2. 2 Whether the RPD improperly drew adverse inferences regarding the appellant's use of WhatsApp without giving opportunity to explain
  3. 3 Whether the RPD misinterpreted and gave undue weight to perceived inconsistencies in the brother's complaint report concerning threats to the children

Ratio Decidendi

The RAD set aside the RPD decision because the RPD committed multiple determinative errors — failing to confront the appellant with material inconsistencies between written accounts, improperly drawing negative inferences about WhatsApp evidence without allowing explanation and relying on unproven assertions about the application, and misreading the brother's complaint regarding threats to the children — and those errors cumulatively distorted the decision; accordingly the matter is referred to the RPD for a new hearing before a different member under s.111(2) IRPA.

Court Disposition

Appeal allowed; RPD determination set aside and matter referred to the RPD for a new hearing before a different member

Orders

  • Appeal allowed
  • RPD determination set aside