MA6-08455

MA6-08455

The tribunal found on the balance of probabilities that the claimant would not, at the date of the hearing, have been admitted to the US with status substantially similar to US nationals because she had effectively abandoned her US permanent residence; however, after applying the Zeng balancing test and considering her reasons for loss of status (domestic violence, trauma, lack of knowledge and credible fear), the objective risk of persecution in Afghanistan, and lack of state protection or viable internal flight alternative, the Minister failed to justify exclusion under Article 1E and the claimant was properly recognized as a Convention Refugee.

Citation
MA6-08455
Parties
Claimant: XXXXX XXXXX; Intervener: Minister of Public Safety and Emergency Preparedness
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
19 July 2010
Procedural Posture
Refugee Protection (irpa Ss.96 98) / Refugee Protection Division Hearing and Decision
Outcome
Minister's request to exclude denied; claimant found to be a Convention Refugee
Legal Topics
Article 1 E Exclusion, Permanent Resident Status of Third Country, Gender Based Persecution, State Protection, Internal Flight Alternative, Zeng Test
Source Language
English
Immigration Refugee Law International Law Article 1 E Exclusion Permanent Resident Status of Third Country Gender Based Persecution State Protection Internal Flight Alternative +1 more

Case Brief

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Parties

XXXXX XXXXX

Claimant

Minister of Public Safety and Emergency Preparedness

Intervener

Procedural Posture

Refugee Protection (irpa Ss.96 98) / Refugee Protection Division Hearing and Decision

Legal Issues

  1. 1 Whether claimant is excluded under Article 1E of the 1951 Refugee Convention
  2. 2 Whether the claimant had status substantially similar to nationals of the United States at the date of hearing
  3. 3 Whether the claimant previously had and lost such status and the reasons for loss

Ratio Decidendi

The tribunal found on the balance of probabilities that the claimant would not, at the date of the hearing, have been admitted to the US with status substantially similar to US nationals because she had effectively abandoned her US permanent residence; however, after applying the Zeng balancing test and considering her reasons for loss of status (domestic violence, trauma, lack of knowledge and credible fear), the objective risk of persecution in Afghanistan, and lack of state protection or viable internal flight alternative, the Minister failed to justify exclusion under Article 1E and the claimant was properly recognized as a Convention Refugee.

Court Disposition

Minister's request to exclude denied; claimant found to be a Convention Refugee

Orders

  • Minister's request for exclusion under Article 1E denied
  • Claimant recognized as a Convention Refugee