MB9-13229

MB9-13229

The RAD found on the evidence and documentary record that the adult appellants did not possess permanent resident status in Brazil at the time of the RPD hearing and, on balance of probabilities, did not have a clear or non-discretionary opportunity to acquire such status; therefore Article 1E did not apply and the RPD erred. The RAD referred the adult appellants' claims to a differently constituted RPD panel for re-determination and dismissed the appeals of the minor children for failing to meet the s.96/s.97(1) IRPA thresholds.

Citation
MB9-13229
Parties
Principal Appellant: XXXX XXXX; Female Associate Appellant: XXXX XXXX XXXX; Associate Appellant (citizen of Ecuador): XXXX XXXX XXXX XXXX; Associate Appellant (citizen of Brazil): XXXX XXXX XXXX; Minor Appellant: XXXX XXXX XXXX XXXX; Minor Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
26 November 2019
Procedural Posture
Refugee Protection Appeal From RPD Decision / Decision on Appeal by Refugee Appeal Division (allow in Part; Referral to Rpd)
Outcome
Appeal allowed in part; adult appellants referred to a differently constituted RPD panel; appeals of minor children dismissed.
Legal Topics
Exclusion Clause Article 1 E, Permanent Resident Status and Acquisition, Credibility Assessment, Jurisdictional Standard of Review, Best Interests and Risk to Minor Children
Source Language
English
Immigration Law Refugee Law Administrative Law Exclusion Clause Article 1 E Permanent Resident Status and Acquisition Credibility Assessment Jurisdictional Standard of Review Best Interests and Risk to Minor Children

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Female Associate Appellant

XXXX XXXX XXXX XXXX

Associate Appellant (citizen of Ecuador)

XXXX XXXX XXXX

Associate Appellant (citizen of Brazil)

XXXX XXXX XXXX XXXX

Minor Appellant

XXXX XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Protection Appeal From RPD Decision / Decision on Appeal by Refugee Appeal Division (allow in Part; Referral to Rpd)

Legal Issues

  1. 1 Whether adult appellants had status essentially equivalent to nationals of Brazil at time of RPD hearing (Article 1E)
  2. 2 Whether appellants had opportunity to obtain permanent resident status in Brazil
  3. 3 Whether RPD erred in credibility assessment and in failing to assess fear regarding Haiti

Ratio Decidendi

The RAD found on the evidence and documentary record that the adult appellants did not possess permanent resident status in Brazil at the time of the RPD hearing and, on balance of probabilities, did not have a clear or non-discretionary opportunity to acquire such status; therefore Article 1E did not apply and the RPD erred. The RAD referred the adult appellants' claims to a differently constituted RPD panel for re-determination and dismissed the appeals of the minor children for failing to meet the s.96/s.97(1) IRPA thresholds.

Court Disposition

Appeal allowed in part; adult appellants referred to a differently constituted RPD panel; appeals of minor children dismissed.

Orders

  • Refer the adult appellants' matter to a differently constituted Refugee Protection Division panel pursuant to subsection 111(1) IRPA.
  • Dismiss the appeals of the minor children for failure to establish a serious possibility of persecution or risk as required by sections 96 or 97(1) IRPA.