MB9-11486

MB9-11486

The appeal is dismissed because the principal appellant held permanent resident status in South Africa and is therefore excluded under Article 1E; alternatively, even if the alleged attacks were credible, the record fails to establish a nexus to a Convention ground and viable internal flight alternatives (Cape Town or Johannesburg) exist that would not be unreasonable for the family, and procedural errors identified (medical report misinterpretation) were inadvertent and not determinative.

Citation
MB9-11486
Parties
Principal Appellant: XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX; Associate Appellant (minor): XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
20 December 2019
Procedural Posture
Refugee Protection Appeal (exclusion Under Article 1 E; Irpa) / Appeal to Refugee Appeal Division – Reasons and Decision (appeal Dismissed)
Outcome
Appeal dismissed; RPD determination confirmed that the principal appellant is a person described in Article 1E of the Convention and neither the principal nor the minor appellants are Convention refugees or persons in need of protection.
Legal Topics
Article 1 E Exclusion, Internal Flight Alternative (ifa), Nexus to Convention Grounds, Procedural Fairness for Vulnerable Persons, Medical Evidence (hiv), Charter Sections 7 and 15
Source Language
English
Immigration Law Refugee Law Administrative Law Constitutional Law Article 1 E Exclusion Internal Flight Alternative (ifa) Nexus to Convention Grounds Procedural Fairness for Vulnerable Persons +2 more

Case Brief

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Parties

XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Associate Appellant (minor)

Procedural Posture

Refugee Protection Appeal (exclusion Under Article 1 E; Irpa) / Appeal to Refugee Appeal Division – Reasons and Decision (appeal Dismissed)

Legal Issues

  1. 1 Whether the principal appellant is excluded from refugee protection under Article 1E due to permanent resident status in South Africa
  2. 2 Whether there is nexus between the alleged attacks and xenophobia (Convention grounds)
  3. 3 Whether a viable internal flight alternative (Cape Town or Johannesburg) exists and is reasonable

Ratio Decidendi

The appeal is dismissed because the principal appellant held permanent resident status in South Africa and is therefore excluded under Article 1E; alternatively, even if the alleged attacks were credible, the record fails to establish a nexus to a Convention ground and viable internal flight alternatives (Cape Town or Johannesburg) exist that would not be unreasonable for the family, and procedural errors identified (medical report misinterpretation) were inadvertent and not determinative.

Court Disposition

Appeal dismissed; RPD determination confirmed that the principal appellant is a person described in Article 1E of the Convention and neither the principal nor the minor appellants are Convention refugees or persons in need of protection.

Orders

  • Appeal dismissed
  • RPD decision of May 2, 2019 confirmed pursuant to paragraph 111(1)(a) of the IRPA