TB5-09850

TB5-09850

RAD denied an oral hearing for lack of new evidence, confirmed the RPD decision for the principal Appellant (appeal dismissed) because conscription amounted to a general risk without Convention nexus and s97 criteria were not met, and set aside the RPD decision for the minor Appellant, finding she is a lesbian, that she faces more than a mere possibility of persecution in Ukraine as a member of a particular social group with inadequate state protection, and substituted a finding that the minor is a Convention refugee.

Citation
TB5-09850
Parties
Principal Appellant: XXXX XXXX; Minor Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
9 December 2015
Procedural Posture
Refugee Protection Appeal to Refugee Appeal Division / Decision on Appeal (oral Hearing Request Denied; Merits Reviewed)
Outcome
Split decision: principal Appellant's appeal dismissed; minor Appellant's appeal allowed and declared a Convention refugee; oral hearing request denied.
Legal Topics
Convention Refugee, Person in Need of Protection, Credibility Findings, Section 96 IRPA Test, Section 97 IRPA State Protection, Sexual Orientation Persecution, Conscription/conscientious Objection
Source Language
English
Immigration Refugee Law Administrative Law Convention Refugee Person in Need of Protection Credibility Findings Section 96 IRPA Test Section 97 IRPA State Protection +2 more

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Protection Appeal to Refugee Appeal Division / Decision on Appeal (oral Hearing Request Denied; Merits Reviewed)

Legal Issues

  1. 1 Whether RAD should hold an oral hearing absent new evidence
  2. 2 Whether RPD applied correct legal test for section 96 (nexus to Convention)
  3. 3 Whether principal Appellant faces persecution or risk amounting to person in need of protection due to conscription

Ratio Decidendi

RAD denied an oral hearing for lack of new evidence, confirmed the RPD decision for the principal Appellant (appeal dismissed) because conscription amounted to a general risk without Convention nexus and s97 criteria were not met, and set aside the RPD decision for the minor Appellant, finding she is a lesbian, that she faces more than a mere possibility of persecution in Ukraine as a member of a particular social group with inadequate state protection, and substituted a finding that the minor is a Convention refugee.

Court Disposition

Split decision: principal Appellant's appeal dismissed; minor Appellant's appeal allowed and declared a Convention refugee; oral hearing request denied.

Orders

  • Application for an oral hearing dismissed for lack of new evidence pursuant to s110(6) IRPA
  • Principal Appellant's appeal dismissed; RPD decision confirmed pursuant to s111(1)(a) IRPA