TA8-02729

TA8-02729

Applying the Jayasekara multi-factor test, the tribunal found that although the claimant was convicted of manslaughter in the United States, mitigating circumstances (she was defending against a sexual assault, was not the aggressor, the prosecution failed to prove murder, and relatively short custodial time served) rebutted the presumption that the offence was 'serious' for purposes of Article 1F(b), so exclusion did not apply; on protection, objective evidence and credible country reports led to a presumption of adequate Albanian state protection except that, given her particular circumstances (female sexual assault survivor, trauma, social stigma), that claimant could not reasonably...

Citation
TA8-02729
Parties
Principal Claimant: XXXXX XXXX; Claimant (daughter in Law): XXXXXXX XXXX; Claimant (adult Son): XXX XXXX XXXX; Claimant (minor Represented): XXXXXXXX XXXX; Respondent (intervenor): Minister of Public Safety
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
15 July 2011
Procedural Posture
Refugee Protection Claim Under IRPA / Hearing Held and Decision Issued (final Decision)
Outcome
One claimant found to be a person in need of protection; three claimants rejected; exclusion under Article 1F(b) not applied to the accepted claimant.
Legal Topics
Exclusion Under Article 1 F(b), State Protection, Blood Feud/vengeance, Credibility and Evidence, Self Defence and Mitigating Circumstances, Convention Inclusion Vs. S.97(1) Protection
Source Language
English
Immigration and Refugee Law Criminal Law Human Rights Law Exclusion Under Article 1 F(b) State Protection Blood Feud/vengeance Credibility and Evidence Self Defence and Mitigating Circumstances +1 more

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Parties

XXXXX XXXX

Principal Claimant

XXXXXXX XXXX

Claimant (daughter in Law)

XXX XXXX XXXX

Claimant (adult Son)

XXXXXXXX XXXX

Claimant (minor Represented)

Minister of Public Safety

Respondent (intervenor)

Procedural Posture

Refugee Protection Claim Under IRPA / Hearing Held and Decision Issued (final Decision)

Legal Issues

  1. 1 Whether claimant convicted of manslaughter is excluded from refugee protection under Article 1F(b)/Section 98 IRPA
  2. 2 Whether there is an objective basis for a well-founded fear arising from blood feuds
  3. 3 Whether adequate state protection is available in Albania or the United States

Ratio Decidendi

Applying the Jayasekara multi-factor test, the tribunal found that although the claimant was convicted of manslaughter in the United States, mitigating circumstances (she was defending against a sexual assault, was not the aggressor, the prosecution failed to prove murder, and relatively short custodial time served) rebutted the presumption that the offence was 'serious' for purposes of Article 1F(b), so exclusion did not apply; on protection, objective evidence and credible country reports led to a presumption of adequate Albanian state protection except that, given her particular circumstances (female sexual assault survivor, trauma, social stigma), that claimant could not reasonably...

Court Disposition

One claimant found to be a person in need of protection; three claimants rejected; exclusion under Article 1F(b) not applied to the accepted claimant.

Orders

  • Refugee protection claim accepted for XXXXXX XXXX (person in need of protection)
  • Refugee protection claims rejected for XXXXX XXXX, XXX XXXX XXXX and XXXXXXXX XXXX