MB8-27844

MB8-27844

The RPD erred by placing decisive weight on a minor, explainable contradiction, on deficiencies in documentary corroboration that were not determinative given the appellant's consistent and direct testimony, and on the absence of explicit US asylum documentation; on a balance of probabilities under s.97 IRPA the appellant demonstrated a real risk of death or cruel and unusual treatment from the identified persecutor if returned, therefore the RAD set aside the RPD decision and found the appellant a person in need of protection.

Citation
MB8-27844
Parties
Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
5 July 2019
Procedural Posture
Refugee Protection Appeal / RAD Decision on Appeal Replacing RPD Decision
Outcome
Appeal allowed; RPD decision set aside and substituted with RAD determination that appellant is a person in need of protection
Legal Topics
Credibility Assessment, Corroboration of Evidence, Risk Assessment Under S.97 IRPA, Standard of Review, Natural Justice
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Assessment Corroboration of Evidence Risk Assessment Under S.97 IRPA Standard of Review Natural Justice

Case Brief

Summary, issues, holding and outcome

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Parties

XXXX XXXX

Appellant

Procedural Posture

Refugee Protection Appeal / RAD Decision on Appeal Replacing RPD Decision

Legal Issues

  1. 1 Whether the RPD erred in finding the appellant not credible based on a minor contradiction and lack of corroboration
  2. 2 Whether absence of documentary proof of an asylum claim in the United States is determinative of credibility
  3. 3 Whether, on a balance of probabilities under s.97 IRPA, the appellant faces a risk to life or cruel and unusual treatment if returned to Haiti

Ratio Decidendi

The RPD erred by placing decisive weight on a minor, explainable contradiction, on deficiencies in documentary corroboration that were not determinative given the appellant's consistent and direct testimony, and on the absence of explicit US asylum documentation; on a balance of probabilities under s.97 IRPA the appellant demonstrated a real risk of death or cruel and unusual treatment from the identified persecutor if returned, therefore the RAD set aside the RPD decision and found the appellant a person in need of protection.

Court Disposition

Appeal allowed; RPD decision set aside and substituted with RAD determination that appellant is a person in need of protection

Orders

  • Pursuant to paragraph 111(1)(b) RAD sets aside the impugned RPD decision and substitutes its own determination that the appellant is a person in need of protection.