VC0-02598

VC0-02598

On independent review the RAD found the Minister failed to establish serious reasons to consider the Principal Respondent committed a serious non‑political crime (child abduction) and that even if conduct could be examined as an offence, the context (de facto exclusive custodial role since 2013, fear of FGM, lack of prosecutorial warrant to pursue) rebuts seriousness. The RAD upheld the RPD's credibility findings and concluded the Respondents have a well‑founded fear of gender‑based persecution, no effective state protection is available, and no viable IFA exists; therefore the Principal Respondent is not excluded and the Respondents are Convention refugees.

Citation
VC0-02598
Parties
Principal Respondent: XXXX XXXX XXXX (Principal Respondent); Minor Respondent: XXXX XXXX XXXX XXXX XXXX XXXX (Minor Respondent - daughter); Minor Respondent: XXXX XXXX XXXX XXXX (Minor Respondent - daughter); Minor Respondent: Unnamed minor son (Claimant at RPD); Appellant / Intervenor: Minister of Public Safety and Emergency Preparedness; Designated Representative: XXXX XXXX XXXX (Designated Representative)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
30 March 2021
Procedural Posture
Refugee Appeal (refugee Appeal Division Under Irpa) / Decision on Appeal (rad Decision Confirming Rpd)
Outcome
Appeal dismissed. RPD decision confirmed: Principal Respondent not excluded under Article 1(F)(b); Principal and Minor Respondents are Convention refugees; no state protection or viable IFA.
Legal Topics
Exclusion Under Article 1(f)(b), Child Abduction (criminal Code S.283), Credibility of Claimants, State Protection, Internal Flight Alternative (ifa), Female Genital Mutilation (fgm), Defence of Imminent Harm, Prosecutorial Discretion and Seriousness
Source Language
English
Immigration Law Refugee Law Criminal Law Family Law Administrative Law Exclusion Under Article 1(f)(b) Child Abduction (criminal Code S.283) Credibility of Claimants +5 more

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Parties

XXXX XXXX XXXX (Principal Respondent)

Principal Respondent

XXXX XXXX XXXX XXXX XXXX XXXX (Minor Respondent - daughter)

Minor Respondent

XXXX XXXX XXXX XXXX (Minor Respondent - daughter)

Minor Respondent

Unnamed minor son (Claimant at RPD)

Minor Respondent

Minister of Public Safety and Emergency Preparedness

Appellant / Intervenor

XXXX XXXX XXXX (Designated Representative)

Designated Representative

Procedural Posture

Refugee Appeal (refugee Appeal Division Under Irpa) / Decision on Appeal (rad Decision Confirming Rpd)

Legal Issues

  1. 1 Whether there are serious reasons to consider the Principal Respondent committed a serious non‑political crime (child abduction) prior to arrival in Canada (Article 1(F)(b))
  2. 2 Credibility of the Principal and Minor Respondents' testimonies and documentary evidence
  3. 3 Whether the Respondents have an objective basis for fearing persecution (risk of FGM and family violence)

Ratio Decidendi

On independent review the RAD found the Minister failed to establish serious reasons to consider the Principal Respondent committed a serious non‑political crime (child abduction) and that even if conduct could be examined as an offence, the context (de facto exclusive custodial role since 2013, fear of FGM, lack of prosecutorial warrant to pursue) rebuts seriousness. The RAD upheld the RPD's credibility findings and concluded the Respondents have a well‑founded fear of gender‑based persecution, no effective state protection is available, and no viable IFA exists; therefore the Principal Respondent is not excluded and the Respondents are Convention refugees.

Court Disposition

Appeal dismissed. RPD decision confirmed: Principal Respondent not excluded under Article 1(F)(b); Principal and Minor Respondents are Convention refugees; no state protection or viable IFA.

Orders

  • Appeal dismissed and decision of the Refugee Protection Division confirmed pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA)