TC0-09774

TC0-09774

The incomplete recording of the RPD hearing resulted in an inadequate record that deprived the appellants of procedural fairness; because the missing testimony was central to credibility and findings on risk and internal flight, the RAD could not confirm or substitute the RPD's findings and therefore allowed the appeal and referred the matter back to the RPD for redetermination by a differently constituted panel under IRPA s.111(1)(c).

Citation
TC0-09774
Parties
Appellants: XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX; Respondent: Minister (Respondent)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
15 January 2021
Procedural Posture
Refugee Appeal Under the Immigration and Refugee Protection Act (irpa) / Appeal to the Refugee Appeal Division (rad) From Refugee Protection Division (rpd) Decision; RAD Decision to Allow Appeal and Refer Matter Back to RPD for Redetermination
Outcome
Appeal allowed; matter referred back to the Refugee Protection Division for redetermination by a differently constituted panel.
Legal Topics
Procedural Fairness, Incomplete Hearing Record, Remittal/referral, Gender Based Persecution, Internal Flight Alternative, Credibility Findings, Statutory Interpretation of IRPA Provisions
Source Language
English
Immigration Law Refugee Protection Administrative Law Procedural Fairness Incomplete Hearing Record Remittal/referral Gender Based Persecution Internal Flight Alternative +2 more

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Parties

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

Appellants

Minister (Respondent)

Respondent

Procedural Posture

Refugee Appeal Under the Immigration and Refugee Protection Act (irpa) / Appeal to the Refugee Appeal Division (rad) From Refugee Protection Division (rpd) Decision; RAD Decision to Allow Appeal and Refer Matter Back to RPD for Redetermination

Legal Issues

  1. 1 Whether the incomplete recording of the RPD hearing breached the appellants' right to procedural fairness
  2. 2 Whether the record is adequate to permit the RAD to confirm or substitute the RPD's findings on risk and credibility
  3. 3 Whether the risk alleged is a generalized risk under section 97 IRPA and whether the minor faces gender-based persecution under section 96 IRPA

Ratio Decidendi

The incomplete recording of the RPD hearing resulted in an inadequate record that deprived the appellants of procedural fairness; because the missing testimony was central to credibility and findings on risk and internal flight, the RAD could not confirm or substitute the RPD's findings and therefore allowed the appeal and referred the matter back to the RPD for redetermination by a differently constituted panel under IRPA s.111(1)(c).

Court Disposition

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

Orders

  • Appeal allowed.
  • Request for an oral hearing before the RAD denied.