MB9-24834

MB9-24834

The RPD correctly applied Article 1E: the adult appellants had obtained permanent resident status in Brazil conferring rights substantially similar to nationals, and despite loss of that status due to absence, the relevant balancing of Zeng factors (voluntary departure and absence of a personal prospective risk on return to Haiti distinct from generalized violence) supported exclusion; the minor appellants were correctly found not to be Convention refugees or persons in need of protection because alleged discrimination and family separation did not establish individualized risk or persecution; therefore the RPD decision is confirmed and the appeal dismissed.

Citation
MB9-24834
Parties
Principal Appellant: XXXX XXXX; Associate Appellant (spouse): XXXX XXXX; Associate Appellant (minor, Citizen of the United States): XXXX XXXX XXXX; Associate Appellant (minor, Citizen of Brazil): XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
14 February 2020
Procedural Posture
Refugee Protection Appeal to Refugee Appeal Division / Reasons and Decision on Appeal
Outcome
Appeal dismissed; RPD determinations confirmed
Legal Topics
Article 1 E Exclusion (refugee Convention), Convention Refugee Determination, Person in Need of Protection, Permanent Resident Status in Third Country, State Protection and Internal Flight Alternative, Best Interests of the Child, Asylum Shopping
Source Language
English
Immigration Law Refugee Law Administrative Law Article 1 E Exclusion (refugee Convention) Convention Refugee Determination Person in Need of Protection Permanent Resident Status in Third Country State Protection and Internal Flight Alternative +2 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant (spouse)

XXXX XXXX XXXX

Associate Appellant (minor, Citizen of the United States)

XXXX XXXX

Associate Appellant (minor, Citizen of Brazil)

Procedural Posture

Refugee Protection Appeal to Refugee Appeal Division / Reasons and Decision on Appeal

Legal Issues

  1. 1 Was Article 1E exclusion applied correctly to adult appellants who obtained permanent residence in Brazil?
  2. 2 Did the adult appellants lose permanent resident status in Brazil and was the loss voluntary or involuntary?
  3. 3 Could the adult appellants return to Brazil at the date of the RPD hearing?

Ratio Decidendi

The RPD correctly applied Article 1E: the adult appellants had obtained permanent resident status in Brazil conferring rights substantially similar to nationals, and despite loss of that status due to absence, the relevant balancing of Zeng factors (voluntary departure and absence of a personal prospective risk on return to Haiti distinct from generalized violence) supported exclusion; the minor appellants were correctly found not to be Convention refugees or persons in need of protection because alleged discrimination and family separation did not establish individualized risk or persecution; therefore the RPD decision is confirmed and the appeal dismissed.

Court Disposition

Appeal dismissed; RPD determinations confirmed

Orders

  • Principal appellant and spouse are excluded under Article 1E of the Refugee Convention; associate appellants (minor children) are not Convention refugees or persons in need of protection; appeal dismissed