TB8-31452

TB8-31452

The RAD concluded the RPD erred by making adverse credibility findings without considering the totality of evidence and failing to give adequate weight to corroborating court and media documents, medical evidence and testimony by the Principal Appellant's children; applying the correct legal standards and relevant Chairperson guidelines, the RAD found on a balance of probabilities that the Principal Appellant is a lesbian who suffered domestic abuse, that the family faces persecution or serious harm in Kenya including imputed SOGIE risk and lack of state protection, and therefore set aside the RPD decision and granted refugee protection and designation as persons in need of protection.

Citation
TB8-31452
Parties
Appellant (principal): XXXX XXXX XXXX; Appellant (associate): XXXX XXXX XXXX XXXX XXXX XXXX XXXX; XXXX XXXX XXXX; Respondent (minister): Minister (Respondent)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
7 February 2020
Procedural Posture
Refugee Appeal Under the Immigration and Refugee Protection Act / Appeal to Refugee Appeal Division (final Decision)
Outcome
Appeal allowed; RPD determination set aside; appellants determined to be Convention refugees and persons in need of protection.
Legal Topics
Convention Refugee, Person in Need of Protection, Credibility Assessment, Sexual Orientation, Domestic Violence, State Protection, Admissibility of New Evidence, SOGIE Guidelines
Source Language
English
Immigration Law Refugee Protection Administrative Law Human Rights Family Law Lgbtq+ Rights Convention Refugee Person in Need of Protection +6 more

Case Brief

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Parties

XXXX XXXX XXXX

Appellant (principal)

XXXX XXXX XXXX XXXX XXXX XXXX XXXX; XXXX XXXX XXXX

Appellant (associate)

Minister (Respondent)

Respondent (minister)

Procedural Posture

Refugee Appeal Under the Immigration and Refugee Protection Act / Appeal to Refugee Appeal Division (final Decision)

Legal Issues

  1. 1 Whether the RPD erred in its credibility findings
  2. 2 Whether the RPD gave adequate weight to corroborative documentary and medical evidence
  3. 3 Whether the Principal Appellant established sexual orientation on a balance of probabilities

Ratio Decidendi

The RAD concluded the RPD erred by making adverse credibility findings without considering the totality of evidence and failing to give adequate weight to corroborating court and media documents, medical evidence and testimony by the Principal Appellant's children; applying the correct legal standards and relevant Chairperson guidelines, the RAD found on a balance of probabilities that the Principal Appellant is a lesbian who suffered domestic abuse, that the family faces persecution or serious harm in Kenya including imputed SOGIE risk and lack of state protection, and therefore set aside the RPD decision and granted refugee protection and designation as persons in need of protection.

Court Disposition

Appeal allowed; RPD determination set aside; appellants determined to be Convention refugees and persons in need of protection.

Orders

  • RAD sets aside the RPD determination and substitutes its own determination that the Appellants are Convention refugees and persons in need of protection pursuant to s.111(1)(b) IRPA
  • Certified police documents admitted as new evidence under s.110(4) IRPA