MB9-07917

MB9-07917

The principal appellant is not excluded under Article 1E because the RPD relied on evidence that did not constitute prima facie proof of continued permanent residence and, on the balance of probabilities, she held temporary residence that could have been revoked after prolonged absence; therefore exclusion was not properly established and the claim is referred to the RPD for determination. The associate appellant's appeal fails because he did not rebut the presumption of state protection with clear and convincing evidence and the late, uncorroborated allegation undermined the claim of a personal risk.

Citation
MB9-07917
Parties
Principal Appellant: XXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
24 February 2020
Procedural Posture
Refugee Appeal (rad) / Reasons and Decision (final Disposition)
Outcome
Principal appellant's appeal allowed and referred to a differently constituted RPD panel; associate appellant's appeal dismissed.
Legal Topics
Article 1 E Exclusion, State Protection, Residence Status, Standard of Review, Credibility, Minor Claimant Protection
Source Language
English
Immigration Law Refugee Law Administrative Law Article 1 E Exclusion State Protection Residence Status Standard of Review Credibility +1 more

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Associate Appellant

Procedural Posture

Refugee Appeal (rad) / Reasons and Decision (final Disposition)

Legal Issues

  1. 1 Was the exclusion under Article 1E of the Convention correctly applied?
  2. 2 Did the RPD incorrectly assess state protection with respect to the associate appellant?

Ratio Decidendi

The principal appellant is not excluded under Article 1E because the RPD relied on evidence that did not constitute prima facie proof of continued permanent residence and, on the balance of probabilities, she held temporary residence that could have been revoked after prolonged absence; therefore exclusion was not properly established and the claim is referred to the RPD for determination. The associate appellant's appeal fails because he did not rebut the presumption of state protection with clear and convincing evidence and the late, uncorroborated allegation undermined the claim of a personal risk.

Court Disposition

Principal appellant's appeal allowed and referred to a differently constituted RPD panel; associate appellant's appeal dismissed.

Orders

  • Pursuant to IRPA s.111(1)(c) and s.111(2)(b) refer the principal appellant's claim to a differently constituted Refugee Protection Division panel for determination.
  • Pursuant to IRPA s.111(1)(a) dismiss the associate appellant's appeal; confirm he is neither a Convention refugee nor a person in need of protection.