TC1-16628

TC1-16628

The RAD admitted the Indian acquittal as new evidence, found the FIR and bail order insufficient and not credible to establish 'serious reasons for considering' the Principal Appellant committed assault or other serious offences, concluded the Minister failed to meet the exclusion burden, and independently found the Principal Appellant faces a real risk of cruel and unusual treatment or indefinite detention due to outstanding warrants and systemic prison/judicial failings in India; the Associate Appellants have no reasonable internal flight alternative given their profile (family of a proclaimed absconder, gender, age, lack of work experience), and state protection is unavailable —...

Citation
TC1-16628
Parties
Principal Appellant: XXXX XXXX XXXX XXXX; Associate Appellant (spouse): XXXX XXXX; Associate Appellant (daughter): XXXX XXXX; Associate Appellant (son): XXXX XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
15 June 2022
Procedural Posture
Refugee Protection Appeal (refugee Appeal Division) / Appeal Allowed; RAD Substituted Decision Issued June 15, 2022
Outcome
Appeal allowed; RAD substitutes its own decision: Principal Appellant found to be a person in need of protection; Associate Appellants found to be Convention refugees.
Legal Topics
Admissibility of New Evidence, Exclusion Under Article 1 F(b) / S.98 IRPA, Inclusion Under S.96 and S.97 IRPA, Internal Flight Alternative (ifa), State Protection, Credibility Assessment, Pre Trial Detention and Prison Conditions
Source Language
English
Immigration Law Refugee Law Exclusion (article 1 F(b)) Internal Flight Alternative Criminal Law Human Rights (cruel and Unusual Treatment) Admissibility of New Evidence Exclusion Under Article 1 F(b) / S.98 IRPA +5 more

Case Brief

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Parties

XXXX XXXX XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant (spouse)

XXXX XXXX

Associate Appellant (daughter)

XXXX XXXX XXXX XXXX

Associate Appellant (son)

Procedural Posture

Refugee Protection Appeal (refugee Appeal Division) / Appeal Allowed; RAD Substituted Decision Issued June 15, 2022

Legal Issues

  1. 1 Whether the Principal Appellant is excluded from refugee protection under Article 1F(b) and s.98 IRPA for alleged assault with a weapon and related offences
  2. 2 Whether new evidence (Indian court acquittal) is admissible on appeal under s.110(4) IRPA
  3. 3 Whether the Principal Appellant faces a risk of cruel and unusual treatment or punishment in India (s.97)

Ratio Decidendi

The RAD admitted the Indian acquittal as new evidence, found the FIR and bail order insufficient and not credible to establish 'serious reasons for considering' the Principal Appellant committed assault or other serious offences, concluded the Minister failed to meet the exclusion burden, and independently found the Principal Appellant faces a real risk of cruel and unusual treatment or indefinite detention due to outstanding warrants and systemic prison/judicial failings in India; the Associate Appellants have no reasonable internal flight alternative given their profile (family of a proclaimed absconder, gender, age, lack of work experience), and state protection is unavailable —...

Court Disposition

Appeal allowed; RAD substitutes its own decision: Principal Appellant found to be a person in need of protection; Associate Appellants found to be Convention refugees.

Orders

  • Admit as new evidence the Indian acquittal decision and certain prescription evidence (Quetiapine Fumarate)
  • Decline to hold an oral hearing