TB7-21082

TB7-21082

The RAD found the RPD committed a critical error by overemphasizing documentary identity evidence and failing to apply the SOGIE Guidelines and to ask sufficient questions about the Principal Appellant's relationships and bisexual identity; those errors prevented a fair determination and made substitution impossible, therefore the RAD allowed the appeal and referred the matter to the RPD for redetermination by a differently constituted panel under s.111(1)(c) IRPA.

Citation
TB7-21082
Parties
Principal Appellant: XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX; Minor Appellant: XXXX XXXX XXXX-XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
6 July 2018
Procedural Posture
Refugee Protection Appeal to Refugee Appeal Division / Decision on Appeal (rad Allowed and Referred Back to Rpd)
Outcome
Appeal allowed; RPD decision set aside for critical errors and matter referred back to RPD for redetermination by a differently constituted panel
Legal Topics
Sexual Orientation Asylum, SOGIE Guidelines, Credibility Assessment, Admissibility of New Evidence (s.110(4)), Standard of Review
Source Language
English
Immigration Law Refugee Law Administrative Law Evidence Law Procedural Fairness Sexual Orientation Asylum SOGIE Guidelines Credibility Assessment +2 more

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Parties

XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX-XXXX

Minor Appellant

Minister

Respondent

Procedural Posture

Refugee Protection Appeal to Refugee Appeal Division / Decision on Appeal (rad Allowed and Referred Back to Rpd)

Legal Issues

  1. 1 Whether the Principal Appellant established her sexual orientation as bisexual
  2. 2 Whether the RPD properly applied the Chairperson's SOGIE Guidelines
  3. 3 Whether the RPD breached procedural fairness by failing to request/allow map evidence

Ratio Decidendi

The RAD found the RPD committed a critical error by overemphasizing documentary identity evidence and failing to apply the SOGIE Guidelines and to ask sufficient questions about the Principal Appellant's relationships and bisexual identity; those errors prevented a fair determination and made substitution impossible, therefore the RAD allowed the appeal and referred the matter to the RPD for redetermination by a differently constituted panel under s.111(1)(c) IRPA.

Court Disposition

Appeal allowed; RPD decision set aside for critical errors and matter referred back to RPD for redetermination by a differently constituted panel

Orders

  • Pursuant to s.111(1)(c) and s.111(2)(b) IRPA the Refugee Appeal Division allows the appeal and refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel.