TB6-09955

TB6-09955

The RAD allowed the appeal, admitted the Council of Europe report and supplementary memorandum under Rule 29, found that the principal Appellant's testimony on recent domestic abuse was credible in context, concluded the Appellants' cumulative discrimination as Roma constitutes persecution, found state protection unavailable at the operational level (presumption rebutted), and set aside the RPD decision substituting a determination that the Appellants are Convention refugees pursuant to s.111(1)(b) IRPA.

Citation
TB6-09955
Parties
Principal Appellant: XXXX XXXX; Adult Female Appellant: XXXX XXXX XXXX; Minor Male Appellant: XXXX XXXX; Minor Female Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
24 November 2016
Procedural Posture
Refugee Appeal (rad) / Decision on Appeal Including Rule 29 Application; Substitution Under S.111(1)(b) IRPA
Outcome
Appeal allowed; RPD determination set aside; RAD substitutes finding that Appellants are Convention refugees
Legal Topics
Convention Refugee Status, Persecution, State Protection (rebuttal), Admission of New Evidence (rad Rule 29), Domestic Violence, Ethnic Discrimination (roma), Cumulative Harms
Source Language
English
Immigration Refugee Law Administrative Law Human Rights Convention Refugee Status Persecution State Protection (rebuttal) Admission of New Evidence (rad Rule 29) +3 more

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Adult Female Appellant

XXXX XXXX

Minor Male Appellant

XXXX XXXX

Minor Female Appellant

Procedural Posture

Refugee Appeal (rad) / Decision on Appeal Including Rule 29 Application; Substitution Under S.111(1)(b) IRPA

Legal Issues

  1. 1 Admissibility of post‑RPD evidence under RAD Rule 29 and s.110(4) IRPA
  2. 2 Whether cumulative discrimination against Roma amounts to persecution
  3. 3 Whether state protection is available (rebuttal of presumption)

Ratio Decidendi

The RAD allowed the appeal, admitted the Council of Europe report and supplementary memorandum under Rule 29, found that the principal Appellant's testimony on recent domestic abuse was credible in context, concluded the Appellants' cumulative discrimination as Roma constitutes persecution, found state protection unavailable at the operational level (presumption rebutted), and set aside the RPD decision substituting a determination that the Appellants are Convention refugees pursuant to s.111(1)(b) IRPA.

Court Disposition

Appeal allowed; RPD determination set aside; RAD substitutes finding that Appellants are Convention refugees

Orders

  • Set aside the Refugee Protection Division determination and substitute a determination that the Appellants are Convention refugees pursuant to s.111(1)(b) IRPA
  • Admit the Council of Europe Fourth Opinion on Hungary (Sept 12, 2016) and the Supplementary Memorandum of Argument under RAD Rule 29