MC0-09597

MC0-09597

The RAD confirmed the RPD's finding that the minor Brazilian child is neither a Convention refugee nor in need of protection and dismissed her appeal; but the RAD found the RPD erred in excluding the Haitian parents on the basis of residence in Brazil because residence was not established and the RPD failed to assess whether the parents could acquire Brazilian citizenship or, alternatively, to assess exclusion based on residence in Chile (including Zeng factors); the parents' appeals are allowed and the matters are remitted to the RPD to determine ability to acquire Brazilian citizenship and related risk, and if not, to determine exclusion based on Chilean residence.

Citation
MC0-09597
Parties
Male Appellant: XXXX XXXX XXXX; Female Appellant: XXXX XXXX; Minor Daughter (brazilian Citizen): XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
26 February 2021
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Decision on Appeal; Remittal to Refugee Protection Division for Re Determination With Directions
Outcome
Appeal allowed in part: minor daughter's appeal dismissed; Haitian appellants' appeal allowed and remitted to the RPD for re-determination with directions.
Legal Topics
Exclusion Under Article 1 E, Residence and Nationality, Acquisition of Foreign Citizenship, State Protection, Remittal/directions to Tribunal
Source Language
English
Immigration Law Refugee Law Citizenship Law Exclusion Under Article 1 E Residence and Nationality Acquisition of Foreign Citizenship State Protection Remittal/directions to Tribunal

Case Brief

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Parties

XXXX XXXX XXXX

Male Appellant

XXXX XXXX

Female Appellant

XXXX XXXX XXXX

Minor Daughter (brazilian Citizen)

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Decision on Appeal; Remittal to Refugee Protection Division for Re Determination With Directions

Legal Issues

  1. 1 Whether appellants are excluded from Canada’s protection under Article 1E of the 1951 Convention because of residence in Brazil
  2. 2 Whether appellants can acquire Brazilian citizenship and thus avail themselves of protection of Brazil
  3. 3 Whether RPD failed to assess exclusion based on appellants' residence in Chile and failed to apply Zeng factors

Ratio Decidendi

The RAD confirmed the RPD's finding that the minor Brazilian child is neither a Convention refugee nor in need of protection and dismissed her appeal; but the RAD found the RPD erred in excluding the Haitian parents on the basis of residence in Brazil because residence was not established and the RPD failed to assess whether the parents could acquire Brazilian citizenship or, alternatively, to assess exclusion based on residence in Chile (including Zeng factors); the parents' appeals are allowed and the matters are remitted to the RPD to determine ability to acquire Brazilian citizenship and related risk, and if not, to determine exclusion based on Chilean residence.

Court Disposition

Appeal allowed in part: minor daughter's appeal dismissed; Haitian appellants' appeal allowed and remitted to the RPD for re-determination with directions.

Orders

  • RPD to consider documentary evidence and question appellants on residence, status, reasons for loss of status, ability to return, and Canada’s international obligations as directed