MB5-02622

MB5-02622

The RAD found the RPD credible on the facts but concluded the RPD failed to investigate and address the four Guerrero factors and other relevant jurisprudential considerations necessary to determine whether the appellant's risk was individualized. Given the RAD's role to independently assess the evidence while respecting RPD credibility findings, the appropriate remedy is to refer the matter to a newly constituted RPD panel for re-determination including explicit consideration of the Guerrero factors; accordingly the appeal is allowed and the matter is referred under s.111(1)(c).

Citation
MB5-02622
Parties
Appellant: XXXX XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
4 February 2016
Procedural Posture
Refugee Appeal / Appeal to Refugee Appeal Division; Referred to Refugee Protection Division for Re Determination
Outcome
Appeal allowed; matter referred to Refugee Protection Division for re-determination
Legal Topics
Generalized Risk, Individualized Risk Under S.97, Credibility Assessment, Country Conditions, Referral for Re Determination
Source Language
English
Immigration Law Refugee Protection Generalized Risk Individualized Risk Under S.97 Credibility Assessment Country Conditions Referral for Re Determination

Case Brief

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Parties

XXXX XXXX

Appellant

Minister

Respondent

Procedural Posture

Refugee Appeal / Appeal to Refugee Appeal Division; Referred to Refugee Protection Division for Re Determination

Legal Issues

  1. 1 Whether the appellant faces a generalized risk or a personalized/individualized risk under section 97(1) of the Immigration and Refugee Protection Act
  2. 2 Whether the RPD adequately investigated and applied the four Guerrero factors when assessing individualized risk
  3. 3 What level of deference the RAD owes to RPD findings on credibility and country conditions

Ratio Decidendi

The RAD found the RPD credible on the facts but concluded the RPD failed to investigate and address the four Guerrero factors and other relevant jurisprudential considerations necessary to determine whether the appellant's risk was individualized. Given the RAD's role to independently assess the evidence while respecting RPD credibility findings, the appropriate remedy is to refer the matter to a newly constituted RPD panel for re-determination including explicit consideration of the Guerrero factors; accordingly the appeal is allowed and the matter is referred under s.111(1)(c).

Court Disposition

Appeal allowed; matter referred to Refugee Protection Division for re-determination

Orders

  • Appeal allowed.
  • Matter referred to the Refugee Protection Division for re-determination pursuant to ss.111(1)(c) of the Immigration and Refugee Protection Act.