MC0-09826

MC0-09826

The PA is a Convention refugee because the RPD failed to consider supporting evidence and country documents, improperly prioritized delay and failure to seek asylum in the U.S.A., and the proposed IFA locations are neither safe nor reasonable for the PA given continuing police interest and severe psychological harm from past state‑perpetrated sexual assault; accordingly the PA's claim is substituted as accepted, while the AA's and Minor's claims are remitted to the RPD for redetermination and notification to the Minister regarding possible Article 1F exclusion.

Citation
MC0-09826
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX XXXX; Minor Appellant (age 15): XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
4 February 2021
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Decision on Appeal — Reasons and Disposition (substitution for Pa; Redetermination for AA and Minor)
Outcome
Appeal allowed in part: substituted decision that the Principal Appellant is a Convention refugee; the Associate Appellant's and Minor Appellant's claims remitted to the RPD for redetermination by a differently constituted panel and the RPD directed to notify the Minister of a possible Article 1F exclusion.
Legal Topics
Convention Refugee Determination, Internal Flight Alternative, Article 1 F Exclusion, New Evidence Admissibility, Country Condition Analysis, Gender Guidelines
Source Language
English
Immigration Refugee Law Human Rights Administrative Law Gender Based Violence Convention Refugee Determination Internal Flight Alternative Article 1 F Exclusion +3 more

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Associate Appellant

XXXX XXXX

Minor Appellant (age 15)

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Decision on Appeal — Reasons and Disposition (substitution for Pa; Redetermination for AA and Minor)

Legal Issues

  1. 1 Whether the Principal Appellant (PA) is a Convention refugee due to past and continuing gender-based persecution by state agents
  2. 2 Whether internal flight alternative (IFA) to Mumbai or Bangalore is safe and reasonable for the PA
  3. 3 Whether the RPD erred by failing to consider country documents and supporting evidence prior to relying on delay and failure to claim asylum in the U.S.A.

Ratio Decidendi

The PA is a Convention refugee because the RPD failed to consider supporting evidence and country documents, improperly prioritized delay and failure to seek asylum in the U.S.A., and the proposed IFA locations are neither safe nor reasonable for the PA given continuing police interest and severe psychological harm from past state‑perpetrated sexual assault; accordingly the PA's claim is substituted as accepted, while the AA's and Minor's claims are remitted to the RPD for redetermination and notification to the Minister regarding possible Article 1F exclusion.

Court Disposition

Appeal allowed in part: substituted decision that the Principal Appellant is a Convention refugee; the Associate Appellant's and Minor Appellant's claims remitted to the RPD for redetermination by a differently constituted panel and the RPD directed to notify the Minister of a possible Article 1F exclusion.

Orders

  • Substitute decision: Principal Appellant declared a Convention refugee.
  • Remit to RPD: Associate Appellant's claim and Minor Appellant's claim sent back to the RPD for redetermination by a differently constituted panel.