MB8-05105

MB8-05105

The RAD found the RPD's determination was wrong and incomplete in law and fact because the RPD failed to adequately apply applicable SOGIE guidelines and did not sufficiently address credibility, corroboration and timing issues; because the record lacked sufficient corroborative evidence the RAD could not substitute a decision and therefore set aside the RPD determination and remitted the matter to the RPD for re-determination addressing the identified deficiencies.

Citation
MB8-05105
Parties
Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
22 February 2019
Procedural Posture
Refugee Protection Appeal (rad Review of RPD Decision) / Appeal Heard by Refugee Appeal Division; Decision to Set Aside and Remit to RPD for Re Determination
Outcome
appeal allowed; RPD determination set aside and matter referred to RPD for re-determination
Legal Topics
Credibility Assessment, Sexual Orientation (sogie) Claims, IRPA Ss.96 97, 110, 111, Standards of Review, Remittal, Evidence and Corroboration, Procedural Fairness
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Assessment Sexual Orientation (sogie) Claims IRPA Ss.96 97,110,111 Standards of Review Remittal +2 more

Case Brief

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Parties

XXXX XXXX

Appellant

Procedural Posture

Refugee Protection Appeal (rad Review of RPD Decision) / Appeal Heard by Refugee Appeal Division; Decision to Set Aside and Remit to RPD for Re Determination

Legal Issues

  1. 1 Did the RPD err in assessing the appellant's credibility regarding sexual orientation?
  2. 2 Whether the RPD properly applied IRB Guideline 9 (SOGIE) and Guideline 4 and gave appropriate probative weight to evidence
  3. 3 Whether a hearing under s.110(6) IRPA was required for new evidence

Ratio Decidendi

The RAD found the RPD's determination was wrong and incomplete in law and fact because the RPD failed to adequately apply applicable SOGIE guidelines and did not sufficiently address credibility, corroboration and timing issues; because the record lacked sufficient corroborative evidence the RAD could not substitute a decision and therefore set aside the RPD determination and remitted the matter to the RPD for re-determination addressing the identified deficiencies.

Court Disposition

appeal allowed; RPD determination set aside and matter referred to RPD for re-determination

Orders

  • Set aside the RPD determination that the appellant is neither a Convention refugee nor a person in need of protection
  • Refer the matter to the RPD for re-determination (by same panel if practicable) taking into account issues identified by RAD