MC0-01197

MC0-01197

The RPD erred: the appellants' loss of Brazilian permanent residence was involuntary due to racially motivated violence and serious injury; administrative recourse to regain status was unlikely; the female appellant's testimony was credible and corroborated by documents and Guideline 4 was not properly applied; she faces a serious possibility of persecution in Haiti as a Haitian woman and survivor of sexual violence; therefore the appellants are not excluded under Article 1E and the female appellant is a Convention refugee, while the male appellant failed to establish personal risk and his appeal is dismissed.

Citation
MC0-01197
Parties
Female Appellant: XXXX XXXX; Male Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
13 April 2021
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Decision on Appeal (reasons for Decision)
Outcome
Appeal allowed in part: female appellant's appeal allowed and she is found to be a Convention refugee; male appellant's appeal dismissed.
Legal Topics
Convention Refugee, Article 1 E Exclusion, Permanent Resident Status (third Country), Credibility Assessment, Gender Based Persecution, State Protection, Internal Flight Alternative
Source Language
English
Immigration Law Refugee Law International Law Administrative Law Human Rights Law Convention Refugee Article 1 E Exclusion Permanent Resident Status (third Country) +4 more

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Parties

XXXX XXXX

Female Appellant

XXXX XXXX

Male Appellant

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Decision on Appeal (reasons for Decision)

Legal Issues

  1. 1 Whether appellants are excluded from protection under Article 1E of the 1951 Convention and s.98 IRPA due to prior Brazilian permanent resident status
  2. 2 Whether loss of Brazilian permanent resident status was voluntary or involuntary
  3. 3 Whether appellants (particularly the female appellant) can regain or return to Brazil

Ratio Decidendi

The RPD erred: the appellants' loss of Brazilian permanent residence was involuntary due to racially motivated violence and serious injury; administrative recourse to regain status was unlikely; the female appellant's testimony was credible and corroborated by documents and Guideline 4 was not properly applied; she faces a serious possibility of persecution in Haiti as a Haitian woman and survivor of sexual violence; therefore the appellants are not excluded under Article 1E and the female appellant is a Convention refugee, while the male appellant failed to establish personal risk and his appeal is dismissed.

Court Disposition

Appeal allowed in part: female appellant's appeal allowed and she is found to be a Convention refugee; male appellant's appeal dismissed.

Orders

  • Set aside the RPD determination excluding the appellants under Article 1E of the 1951 Convention as it relates to the female appellant
  • Find that the appellants did not voluntarily abandon Brazilian permanent resident status and that they are not excluded under Article 1E