TB9-11003

TB9-11003

Affidavit evidence was inadmissible because it was not shown to be new or reasonably unavailable and lacked source credibility; key credibility findings defeated the Convention refugee (s.96) claim because there was insufficient credible evidence that the persecutor was a state actor or that a protected ground (particular social group or perceived political opinion) existed, but accepted evidence of targeted assault, threats and ineffective state protection established a personalized risk and no reasonable internal flight alternative, so appellants are persons in need of protection under s.97 and the RPD decision is set aside and substituted accordingly.

Citation
TB9-11003
Parties
Principal Appellant: XXXX XXXX XXXX XXXX; Associate Appellant (spouse): XXXX XXXX XXXX; Minor Associate Appellant: XXXX XXXX XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
30 October 2019
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Decision on Appeal (reasons and Disposition Substituting RPD Decision)
Outcome
Appeal allowed; RPD decision set aside and substituted: Appellants found to be persons in need of protection under s.97 IRPA.
Legal Topics
Convention Refugee, Person in Need of Protection, Credibility Assessment, Admissibility of New Evidence, Internal Flight Alternative, State Protection, Particular Social Group, Torture
Source Language
English
Immigration Law Refugee Law Administrative Law Convention Refugee Person in Need of Protection Credibility Assessment Admissibility of New Evidence Internal Flight Alternative +3 more

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Parties

XXXX XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Associate Appellant (spouse)

XXXX XXXX XXXX XXXX XXXX

Minor Associate Appellant

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Decision on Appeal (reasons and Disposition Substituting RPD Decision)

Legal Issues

  1. 1 Admissibility of new affidavit under s.110(4) IRPA and Rule 3
  2. 2 Credibility of appellants and central narrative inconsistencies
  3. 3 Whether agent of persecution is state actor (nexus) for s.96 Convention refugee claim

Ratio Decidendi

Affidavit evidence was inadmissible because it was not shown to be new or reasonably unavailable and lacked source credibility; key credibility findings defeated the Convention refugee (s.96) claim because there was insufficient credible evidence that the persecutor was a state actor or that a protected ground (particular social group or perceived political opinion) existed, but accepted evidence of targeted assault, threats and ineffective state protection established a personalized risk and no reasonable internal flight alternative, so appellants are persons in need of protection under s.97 and the RPD decision is set aside and substituted accordingly.

Court Disposition

Appeal allowed; RPD decision set aside and substituted: Appellants found to be persons in need of protection under s.97 IRPA.

Orders

  • Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act the Refugee Appeal Division sets aside the determination of the Refugee Protection Division and substitutes its own determination that the Appellants are persons in need of protection.