TB3-04458

TB3-04458

At the close of evidence the Member found that the minister had withdrawn active intervention on exclusion but the record contained material (criminal convictions, US records alleging gang involvement, deportation/removal background) sufficient to raise the exclusion issue. The hearing was therefore adjourned for written submissions on credibility, state protection, nexus to Convention grounds (clan and religion), and Article 1F(b) exclusion, with recognition that criminal convictions do not ipso facto establish exclusion and that mitigating factors (rehabilitation, context of alcohol-related offending, lack of reliable evidence of gang membership) must be assessed.

Citation
TB3-04458
Parties
Claimant: XXXX XXXX XXXX; Claimant's Counsel: Paul Dineen; Minister's Counsel (withdrawn): Joe Thipphawong; Interpreter: Omer Ahmed; Designated Representative: N/A; Witness: XXXX XXXX XXXX
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
7 December 2018
Procedural Posture
Refugee Protection Claim / Hearing Concluded and Adjourned for Written Submissions
Outcome
Hearing adjourned for written submissions; decision reserved
Legal Topics
Refugee Claim, Exclusion (article 1 F(b)), Credibility Assessment, Clan Based Persecution, Religious Persecution (sufism), Deportation and Removal Orders, Criminal Convictions and Rehabilitation, Assessments of State Protection
Source Language
English
Immigration Refugee Law Criminal Law Administrative Law International Refugee Law Refugee Claim Exclusion (article 1 F(b)) Credibility Assessment +5 more

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Parties

XXXX XXXX XXXX

Claimant

Paul Dineen

Claimant's Counsel

Joe Thipphawong

Minister's Counsel (withdrawn)

Omer Ahmed

Interpreter

N/A

Designated Representative

XXXX XXXX XXXX

Witness

Procedural Posture

Refugee Protection Claim / Hearing Concluded and Adjourned for Written Submissions

Legal Issues

  1. 1 Whether claimant faces a well-founded fear of persecution on account of clan membership (Madhiban) and religious practice (Sufi)
  2. 2 Whether claimant can obtain state protection in Somalia
  3. 3 Credibility and weight of claimant's evidence given gaps and inconsistent recollection

Ratio Decidendi

At the close of evidence the Member found that the minister had withdrawn active intervention on exclusion but the record contained material (criminal convictions, US records alleging gang involvement, deportation/removal background) sufficient to raise the exclusion issue. The hearing was therefore adjourned for written submissions on credibility, state protection, nexus to Convention grounds (clan and religion), and Article 1F(b) exclusion, with recognition that criminal convictions do not ipso facto establish exclusion and that mitigating factors (rehabilitation, context of alcohol-related offending, lack of reliable evidence of gang membership) must be assessed.

Court Disposition

Hearing adjourned for written submissions; decision reserved

Orders

  • Exhibits 1 through 9 placed on the record
  • Claimant's counsel to file written submissions addressing credibility, nexus to Convention grounds, state protection and Article 1F(b) exclusion by December 17, 2018