TB6-09094

TB6-09094

The RAD admitted post‑decision family- and country-specific evidence as new and credible under s.110(4); it found the RPD erred in rejecting the Principal Appellant's rape claim based on medical/gestational evidence and PTSD diagnosis; given the rape, resulting child, divorced single-mother status, and ongoing targeted threats from the ex-husband's family the Appellants cannot reasonably relocate to Abuja or elsewhere in Nigeria; those facts establish a serious possibility of persecution as members of particular social groups (women resisting cutting, rape victim with out-of-wedlock child, uncut male) and accordingly, pursuant to s.111(1)(b) IRPA, the RPD decision is set aside and...

Citation
TB6-09094
Parties
Principal Appellant: XXXX XXXX XXXX; Female Minor Appellant: XXXX XXXX XXXX; Male Minor Appellant: XXXX XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
16 April 2019
Procedural Posture
Refugee Protection Appeal RAD De Novo Redetermination / Decision on Appeal (re Determination)
Outcome
Appeals allowed; RPD determination set aside and substituted: Appellants found to be Convention refugees
Legal Topics
Internal Flight Alternative (ifa), Admissibility of New Evidence (s.110(4) Irpa), Female Genital Mutilation, Particular Social Group, Judicial Review History
Source Language
English
Immigration Refugee Law Administrative Law Gender Based Persecution Internal Flight Alternative (ifa) Admissibility of New Evidence (s.110(4) Irpa) Female Genital Mutilation Particular Social Group +1 more

Case Brief

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Female Minor Appellant

XXXX XXXX XXXX XXXX

Male Minor Appellant

Procedural Posture

Refugee Protection Appeal RAD De Novo Redetermination / Decision on Appeal (re Determination)

Legal Issues

  1. 1 Whether proposed new evidence is admissible under s.110(4) IRPA and Singh/Raza guidance
  2. 2 Whether an oral hearing was required under s.110(6) IRPA
  3. 3 Whether the Principal Appellant was raped in the US and had a resulting child

Ratio Decidendi

The RAD admitted post‑decision family- and country-specific evidence as new and credible under s.110(4); it found the RPD erred in rejecting the Principal Appellant's rape claim based on medical/gestational evidence and PTSD diagnosis; given the rape, resulting child, divorced single-mother status, and ongoing targeted threats from the ex-husband's family the Appellants cannot reasonably relocate to Abuja or elsewhere in Nigeria; those facts establish a serious possibility of persecution as members of particular social groups (women resisting cutting, rape victim with out-of-wedlock child, uncut male) and accordingly, pursuant to s.111(1)(b) IRPA, the RPD decision is set aside and...

Court Disposition

Appeals allowed; RPD determination set aside and substituted: Appellants found to be Convention refugees

Orders

  • Pursuant to s.111(1)(b) IRPA set aside the RPD determination and substitute a finding that the Appellants are Convention refugees
  • Admit proposed new evidence listed in the record (family affidavits, communications, medical and local reports and the temporary health card) as post-decision/new evidence under s.110(4) IRPA