MB7-24560

MB7-24560

The RAD found the principal appellant's attempted rape was established and that the RPD erred in treating the appellants as lacking subjective fear; combined with pervasive gender-based violence in Haiti, inadequate state protection and no viable internal flight alternative, the principal appellant meets the threshold for a Convention refugee as a member of the particular social group 'Haitian women'. The spouse does not face a serious possibility of persecution and his appeal is dismissed; the RAD accordingly confirms the RPD as to the spouse and substitutes a finding that the principal appellant is a Convention refugee.

Citation
MB7-24560
Parties
Principal Appellant: XXXX XXXX; Spouse / Co Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
1 October 2018
Procedural Posture
Refugee Appeal (rad Review of RPD Decision) / Decision on Appeal Pursuant to IRPA S.111(1)
Outcome
Appeal dismissed as to the spouse (RPD decision confirmed); appeal allowed as to the principal appellant (RPD decision set aside and substituted: principal appellant is a Convention refugee).
Legal Topics
Convention Refugee, Person in Need of Protection, Particular Social Group (women), State Protection, Internal Flight Alternative, Credibility and Corroboration, Standard of Review
Source Language
English
Immigration Law Refugee Law Administrative Law Gender Based Violence Convention Refugee Person in Need of Protection Particular Social Group (women) State Protection +3 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Spouse / Co Appellant

Procedural Posture

Refugee Appeal (rad Review of RPD Decision) / Decision on Appeal Pursuant to IRPA S.111(1)

Legal Issues

  1. 1 Whether the RPD erred in credibility findings and in assessing subjective fear
  2. 2 Whether the principal appellant qualifies as a Convention refugee as a member of the particular social group 'Haitian women' based on gender-based violence and past attempted rape
  3. 3 Whether the appellants' failure to claim asylum in Brazil and the United States negates subjective fear

Ratio Decidendi

The RAD found the principal appellant's attempted rape was established and that the RPD erred in treating the appellants as lacking subjective fear; combined with pervasive gender-based violence in Haiti, inadequate state protection and no viable internal flight alternative, the principal appellant meets the threshold for a Convention refugee as a member of the particular social group 'Haitian women'. The spouse does not face a serious possibility of persecution and his appeal is dismissed; the RAD accordingly confirms the RPD as to the spouse and substitutes a finding that the principal appellant is a Convention refugee.

Court Disposition

Appeal dismissed as to the spouse (RPD decision confirmed); appeal allowed as to the principal appellant (RPD decision set aside and substituted: principal appellant is a Convention refugee).

Orders

  • Dismiss the appeal of XXXX XXXX and confirm the RPD determination that he is neither a Convention refugee nor a person in need of protection.
  • Allow the appeal of XXXX XXXX, set aside the RPD determination and substitute the determination that XXXX XXXX is a Convention refugee.