TB8-04091

TB8-04091

The RAD admitted post‑rejection affidavit, warrant and charge sheet as credible and probative new evidence; oral testimony of the Principal Appellant and GB was detailed, consistent and credible; state actors were agents of persecution and no internal flight alternative existed; on this basis the RAD set aside the RPD decision and found the appellants to be Convention refugees under IRPA.

Citation
TB8-04091
Parties
Appellant Principal: XXXX XXXX XXXX; Appellants Minors: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX; Respondent Minister: Minister of Citizenship and Immigration
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
28 November 2018
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Oral Hearing on New Evidence and Final Decision (appeal Allowed)
Outcome
Appeal allowed; RPD determination set aside and substituted: appellants found to be Convention refugees.
Legal Topics
Convention Refugee Determination, Credibility Assessment, Admissibility of New Evidence, State Protection, Internal Flight Alternative, Family Members at Risk
Source Language
English
Immigration Law Refugee Law Human Rights Law LGBT Rights Convention Refugee Determination Credibility Assessment Admissibility of New Evidence State Protection +2 more

Case Brief

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Parties

XXXX XXXX XXXX

Appellant Principal

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

Appellants Minors

Minister of Citizenship and Immigration

Respondent Minister

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Oral Hearing on New Evidence and Final Decision (appeal Allowed)

Legal Issues

  1. 1 Whether the appellants qualify as Convention refugees based on sexual orientation
  2. 2 Whether new evidence should be admitted on appeal
  3. 3 Assessment of credibility of oral testimony and documentary evidence

Ratio Decidendi

The RAD admitted post‑rejection affidavit, warrant and charge sheet as credible and probative new evidence; oral testimony of the Principal Appellant and GB was detailed, consistent and credible; state actors were agents of persecution and no internal flight alternative existed; on this basis the RAD set aside the RPD decision and found the appellants to be Convention refugees under IRPA.

Court Disposition

Appeal allowed; RPD determination set aside and substituted: appellants found to be Convention refugees.

Orders

  • Set aside the Refugee Protection Division determination.
  • Substitute RAD determination that the Principal Appellant and the Minor Appellants are Convention refugees pursuant to paragraph 111(1)(b) IRPA.