TA1-11289

TA1-11289

On the balance of probabilities and applying the 'reasonable chance/serious possibility' standard, the Tribunal found no persuasive evidence that FARC targeted the family in retaliation for the claimant's letter or e-mail (no nexus to a Convention ground) and concluded the abductors were likely common criminals; however, there is a serious possibility the minor children would be kidnapped and subjected to inhuman and degrading treatment or risk to life, the state cannot protect them and no internal flight alternative exists, therefore all claimants qualify as persons in need of protection under s.97(1)(b) IRPA.

Citation
TA1-11289
Parties
Claimant: XXXXXXXXXXXXXXX; Spouse: XXXXXXXXXXXXXXXXXXXXXXXXXXXXX; Child: XXXXXXXXXXXXXXXXXXXXX; Child: XXXXXXXXXXXXXXXXXXX; Designated Representative: XXXXXX; Refugee Protection Officer: R. Winn; Decision Maker: Milagros J. Eustaquio
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
1 October 2002
Procedural Posture
Refugee Protection Claim (convention Refugee and Person in Need of Protection) / Hearing and Decision (determination by Refugee Protection Division)
Outcome
Claimants are not Convention refugees but are persons in need of protection under section 97(1)(b) of the Immigration and Refugee Protection Act.
Legal Topics
Convention Refugee, Person in Need of Protection (s.97 Irpa), Cruel and Unusual Treatment, State Protection, Internal Flight Alternative, Nexus, Kidnapping, Standard of Proof
Source Language
English
Immigration Refugee Law Human Rights Child Rights Convention Refugee Person in Need of Protection (s.97 Irpa) Cruel and Unusual Treatment State Protection +4 more

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Parties

XXXXXXXXXXXXXXX

Claimant

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Spouse

XXXXXXXXXXXXXXXXXXXXX

Child

XXXXXXXXXXXXXXXXXXX

Child

XXXXXX

Designated Representative

R. Winn

Refugee Protection Officer

Milagros J. Eustaquio

Decision Maker

Procedural Posture

Refugee Protection Claim (convention Refugee and Person in Need of Protection) / Hearing and Decision (determination by Refugee Protection Division)

Legal Issues

  1. 1 Whether claimants are Convention refugees due to persecution by FARC arising from an open letter and e-mail
  2. 2 Whether claimants are persons in need of protection under s.97(1)(b) IRPA due to risk of kidnapping and cruel and unusual treatment
  3. 3 Whether state protection or an internal flight alternative is available

Ratio Decidendi

On the balance of probabilities and applying the 'reasonable chance/serious possibility' standard, the Tribunal found no persuasive evidence that FARC targeted the family in retaliation for the claimant's letter or e-mail (no nexus to a Convention ground) and concluded the abductors were likely common criminals; however, there is a serious possibility the minor children would be kidnapped and subjected to inhuman and degrading treatment or risk to life, the state cannot protect them and no internal flight alternative exists, therefore all claimants qualify as persons in need of protection under s.97(1)(b) IRPA.

Court Disposition

Claimants are not Convention refugees but are persons in need of protection under section 97(1)(b) of the Immigration and Refugee Protection Act.

Orders

  • The Refugee Protection Division determines that XXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXX, and XXXXXXXXXXXXXXXXXXX are persons in need of protection.