MB5-01416

MB5-01416

The RAD set aside the RPD decision because the RPD mischaracterized the appellant's testimony about threats to his family due to confusing questioning, drawing an adverse credibility inference unfairly; this procedural unfairness and the improper handling of evidence requires re-determination by the RPD and prevents substitution of the decision by the RAD without rehearing.

Citation
MB5-01416
Parties
Appellant: XXXX XXXX; Intervenor: Minister of Public Safety of Canada
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
22 November 2016
Procedural Posture
Refugee Protection Appeal / RAD Decision Remitting Claim to RPD for Re Determination by a Differently Constituted Panel
Outcome
Appeal allowed; RPD determination set aside and matter referred back to the RPD for re-determination by a differently constituted panel
Legal Topics
Credibility Assessment, Reasonable Apprehension of Bias, Remand Vs Substitution of Decision, Judicial Review, Deference and Standard of Review
Source Language
English
Immigration Refugee Law Administrative Law Procedural Fairness Credibility Assessment Reasonable Apprehension of Bias Remand Vs Substitution of Decision Judicial Review +1 more

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Parties

XXXX XXXX

Appellant

Minister of Public Safety of Canada

Intervenor

Procedural Posture

Refugee Protection Appeal / RAD Decision Remitting Claim to RPD for Re Determination by a Differently Constituted Panel

Legal Issues

  1. 1 Whether the RPD erred in its credibility finding
  2. 2 Whether there was a reasonable apprehension of bias requiring recusal
  3. 3 Whether the RAD may substitute its own determination or must remit for re-hearing

Ratio Decidendi

The RAD set aside the RPD decision because the RPD mischaracterized the appellant's testimony about threats to his family due to confusing questioning, drawing an adverse credibility inference unfairly; this procedural unfairness and the improper handling of evidence requires re-determination by the RPD and prevents substitution of the decision by the RAD without rehearing.

Court Disposition

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

Orders

  • Set aside the Refugee Protection Division determination dated March 20, 2015
  • Refer the claim to the RPD for re-determination by a differently constituted panel