TA8-23146

TA8-23146

Because the claimant had been granted withholding of removal in the United States and thereby enjoyed the fundamental core protections against removal and basic rights, he was effectively recognized by competent authorities of the country of residence and therefore excluded from Convention refugee status under Article 1E/section 98 IRPA; further, the claimant voluntarily abandoned that protected status to come to Canada which undermines subjective fear and on balance of probabilities there is no serious possibility of persecution, torture, or cruel and unusual treatment on return.

Citation
TA8-23146
Parties
Primary Claimant: XXXXX XXXXXXX XXXXXX XXXXXX; Co Claimant (spouse): XXXXX XXXXXXX XXXXXX; Co Claimant (son): XXXX XXXXXX XXXXXX XXXXXX
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
7 March 2011
Procedural Posture
Refugee Protection Claim Under IRPA / Decision Following Hearing (hearing Oct 27, 2010; Decision Mar 7, 2011)
Outcome
Claim rejected. Primary claimant, spouse and son excluded from Convention refugee status under Article 1E and protection claim denied.
Legal Topics
Exclusion (article 1 E), Withholding of Removal (us), Protection Elsewhere, Political Opinion, Particular Social Group, Credibility, Asylum Shopping, Risk of Torture/cruel/unusual Treatment, Family Based Claims
Source Language
English
Immigration Law Refugee Law International Law Exclusion (article 1 E) Withholding of Removal (us) Protection Elsewhere Political Opinion Particular Social Group +4 more

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Parties

XXXXX XXXXXXX XXXXXX XXXXXX

Primary Claimant

XXXXX XXXXXXX XXXXXX

Co Claimant (spouse)

XXXX XXXXXX XXXXXX XXXXXX

Co Claimant (son)

Procedural Posture

Refugee Protection Claim Under IRPA / Decision Following Hearing (hearing Oct 27, 2010; Decision Mar 7, 2011)

Legal Issues

  1. 1 Whether claimant is excluded under Article 1E due to withholding of removal in the USA
  2. 2 Whether claimant re‑availed of protection in the USA and thus had protection elsewhere
  3. 3 Credibility of the claimant's fear and testimony

Ratio Decidendi

Because the claimant had been granted withholding of removal in the United States and thereby enjoyed the fundamental core protections against removal and basic rights, he was effectively recognized by competent authorities of the country of residence and therefore excluded from Convention refugee status under Article 1E/section 98 IRPA; further, the claimant voluntarily abandoned that protected status to come to Canada which undermines subjective fear and on balance of probabilities there is no serious possibility of persecution, torture, or cruel and unusual treatment on return.

Court Disposition

Claim rejected. Primary claimant, spouse and son excluded from Convention refugee status under Article 1E and protection claim denied.