MB4-03457

MB4-03457

The RAD found the RPD committed errors in its credibility assessment, including failing to clearly address the appellant's sexual orientation and not adequately considering state protection/internal flight alternative; therefore the RAD allowed the appeal, set aside the RPD determination and referred the matter to a differently constituted RPD panel for re-determination considering all evidence and UNHCR Guidelines No.9, because the RAD could not properly substitute its own credibility findings without hearing the evidence in that forum.

Citation
MB4-03457
Parties
Appellant: XXXX XXXX; Intervener: Minister of Public Safety of Canada (intervener)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
2 April 2015
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Appeal Heard by Rad; Appeal Allowed, RPD Determination Set Aside and Matter Referred to Differently Constituted RPD for Re Determination
Outcome
Appeal allowed; RPD determination set aside; matter referred to a differently constituted RPD panel for re-determination
Legal Topics
Credibility Assessment, Sexual Orientation Based Refugee Claim, UNHCR Guidelines No.9, Deference and Standard of Review, Referral for Re Determination, State Protection/internal Flight Alternative
Source Language
English
Immigration Refugee Law Administrative Law Human Rights Credibility Assessment Sexual Orientation Based Refugee Claim UNHCR Guidelines No.9 Deference and Standard of Review +2 more

Case Brief

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Parties

XXXX XXXX

Appellant

Minister of Public Safety of Canada (intervener)

Intervener

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Appeal Heard by Rad; Appeal Allowed, RPD Determination Set Aside and Matter Referred to Differently Constituted RPD for Re Determination

Legal Issues

  1. 1 Whether the RPD committed legal or factual errors in its credibility assessment
  2. 2 Whether the RPD failed to properly assess the appellant's sexual orientation as part of the refugee claim
  3. 3 Whether the RAD may substitute its own credibility findings without an oral hearing

Ratio Decidendi

The RAD found the RPD committed errors in its credibility assessment, including failing to clearly address the appellant's sexual orientation and not adequately considering state protection/internal flight alternative; therefore the RAD allowed the appeal, set aside the RPD determination and referred the matter to a differently constituted RPD panel for re-determination considering all evidence and UNHCR Guidelines No.9, because the RAD could not properly substitute its own credibility findings without hearing the evidence in that forum.

Court Disposition

Appeal allowed; RPD determination set aside; matter referred to a differently constituted RPD panel for re-determination

Orders

  • Appeal allowed
  • RPD determination set aside