TB3-03947

TB3-03947

The Minister's newly disclosed biometric evidence corrected a material factual error on which the RPD based key adverse credibility findings; those credibility findings are therefore unsupported and they infected the RPD's alternative IFA conclusion; because the RAD cannot substitute its own credibility findings without hearing the appellants on evidence already before the RPD, the correct remedy is to allow the appeal and refer the matter to the RPD for redetermination by a differently-constituted panel pursuant to s.111(c) IRPA.

Citation
TB3-03947
Parties
Principal Appellant: XXXX XXXX XXXXX; Minor Appellant: XXXX XXXX XXXX; Intervenor: Minister of Citizenship and Immigration Canada
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
19 August 2013
Procedural Posture
Refugee Appeal / RAD Decision on Appeal With Referral to RPD for Redetermination
Outcome
Appeal allowed; RPD decision set aside as wrong in fact and matter referred to the Refugee Protection Division for redetermination by a differently-constituted panel pursuant to IRPA s.111(c).
Legal Topics
Refugee Protection, Credibility Findings, Internal Flight Alternative, Ministerial Intervention, Biometric Evidence, Gender Based Persecution, Human Trafficking, Admissibility of Evidence
Source Language
English
Immigration and Refugee Law Refugee Protection Credibility Findings Internal Flight Alternative Ministerial Intervention Biometric Evidence Gender Based Persecution Human Trafficking +1 more

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Parties

XXXX XXXX XXXXX

Principal Appellant

XXXX XXXX XXXX

Minor Appellant

Minister of Citizenship and Immigration Canada

Intervenor

Procedural Posture

Refugee Appeal / RAD Decision on Appeal With Referral to RPD for Redetermination

Legal Issues

  1. 1 Whether new biometric evidence disclosed by the Minister undermines the RPD's credibility findings
  2. 2 Whether the RAD may substitute its own decision or must refer the matter back to the RPD
  3. 3 Admissibility and weight of intervenor evidence

Ratio Decidendi

The Minister's newly disclosed biometric evidence corrected a material factual error on which the RPD based key adverse credibility findings; those credibility findings are therefore unsupported and they infected the RPD's alternative IFA conclusion; because the RAD cannot substitute its own credibility findings without hearing the appellants on evidence already before the RPD, the correct remedy is to allow the appeal and refer the matter to the RPD for redetermination by a differently-constituted panel pursuant to s.111(c) IRPA.

Court Disposition

Appeal allowed; RPD decision set aside as wrong in fact and matter referred to the Refugee Protection Division for redetermination by a differently-constituted panel pursuant to IRPA s.111(c).

Orders

  • Intervenor's documents admitted as evidence before the RAD
  • Refer matter to the Refugee Protection Division for redetermination by a differently-constituted panel pursuant to IRPA s.111(c)