TB7-12930

TB7-12930

The RPD's IFA finding is unsustainable because accepted allegations show Hefajat-e-Islam activity and targeting in Chittagong such that relocation there does not remove a serious possibility of persecution; the RPD failed to adequately test credibility on determinative matters, and because unresolved credibility issues remain that require oral evidence, the RAD cannot substitute a positive decision and must remit the matter to the RPD for rehearing by a different member under IRPA s.111(1)(c).

Citation
TB7-12930
Parties
Appellant: XXXX XXXX; Minor Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
22 March 2018
Procedural Posture
Refugee Appeal From Refugee Protection Division Decision Under IRPA / Appeal to Refugee Appeal Division; Decision Set Aside and Remitted for Rehearing
Outcome
Appeals allowed; RPD decision set aside; matter remitted to the RPD for rehearing by a different member pursuant to IRPA s.111(1)(c)
Legal Topics
Internal Flight Alternative, Credibility Assessment, Remittal, Substitution of Decision, Convention Refugee Nexus
Source Language
English
Immigration Refugee Law Administrative Law Internal Flight Alternative Credibility Assessment Remittal Substitution of Decision Convention Refugee Nexus

Case Brief

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Parties

XXXX XXXX

Appellant

XXXX XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Appeal From Refugee Protection Division Decision Under IRPA / Appeal to Refugee Appeal Division; Decision Set Aside and Remitted for Rehearing

Legal Issues

  1. 1 Whether the RPD correctly applied the internal flight alternative (IFA) test
  2. 2 Whether the RPD adequately assessed credibility and explanations for delay and failure to claim in the United States
  3. 3 Whether the RAD may substitute a positive decision or must remit for rehearing

Ratio Decidendi

The RPD's IFA finding is unsustainable because accepted allegations show Hefajat-e-Islam activity and targeting in Chittagong such that relocation there does not remove a serious possibility of persecution; the RPD failed to adequately test credibility on determinative matters, and because unresolved credibility issues remain that require oral evidence, the RAD cannot substitute a positive decision and must remit the matter to the RPD for rehearing by a different member under IRPA s.111(1)(c).

Court Disposition

Appeals allowed; RPD decision set aside; matter remitted to the RPD for rehearing by a different member pursuant to IRPA s.111(1)(c)

Orders

  • RPD decision set aside
  • Matter remitted to the Refugee Protection Division for rehearing by a different member pursuant to paragraph 111(1)(c) IRPA