TB8-08485

TB8-08485

The RAD allowed the appeal, set aside the RPD decision and referred the matter for redetermination by a differently constituted panel because the female Associate Appellant's testimony — a central component of the claims — was potentially impaired by morphine and the former counsel did not respond to allegations of inadequate representation, thereby tainting procedural fairness; two limited items of new evidence (morphine bottle photograph and the Associate's affidavit) were admitted but an oral hearing was denied because replacement of the tainted testimony is required.

Citation
TB8-08485
Parties
Principal Appellant: XXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
30 November 2019
Procedural Posture
Refugee Protection Appeal / Decision on Appeal by Refugee Appeal Division; Referral to RPD for Redetermination by a Differently Constituted Panel
Outcome
Appeal allowed; RPD decision set aside; matter referred to RPD for redetermination by a differently constituted panel.
Legal Topics
New Evidence Admissibility, Credibility, Reavailment, Sur Place, Female Genital Mutilation (fgm), Ineffective Assistance of Counsel, Redetermination
Source Language
English
Immigration Law Refugee Law Administrative Law Procedural Fairness Evidence Law New Evidence Admissibility Credibility Reavailment +4 more

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

Associate Appellant

XXXX XXXX XXXX XXXX

Associate Appellant

Procedural Posture

Refugee Protection Appeal / Decision on Appeal by Refugee Appeal Division; Referral to RPD for Redetermination by a Differently Constituted Panel

Legal Issues

  1. 1 Whether new evidence should be admitted on appeal
  2. 2 Whether procedural fairness was breached due to alleged impaired testimony and inadequate representation by former counsel
  3. 3 Whether credibility findings of the RPD are tainted by potentially impaired testimony of a crucial witness

Ratio Decidendi

The RAD allowed the appeal, set aside the RPD decision and referred the matter for redetermination by a differently constituted panel because the female Associate Appellant's testimony — a central component of the claims — was potentially impaired by morphine and the former counsel did not respond to allegations of inadequate representation, thereby tainting procedural fairness; two limited items of new evidence (morphine bottle photograph and the Associate's affidavit) were admitted but an oral hearing was denied because replacement of the tainted testimony is required.

Court Disposition

Appeal allowed; RPD decision set aside; matter referred to RPD for redetermination by a differently constituted panel.

Orders

  • Admit two documents as new evidence: photograph of prescribed morphine bottle and affidavit of the female Associate Appellant.
  • Deny admission of other proffered documents as not new or not sufficiently probative.