TB8-26245

TB8-26245

The RAD accepted the Eritrean Consulate General letter as new evidence under s.110(4) IRPA and Singh/Raza factors, overturned the RPD's finding that identity was not established, substituted a finding on the balance of probabilities that the appellants are Eritrean, found the Principal Appellant faces a well‑founded fear of persecution for desertion (imputed political opinion) and the other appellants face a well‑founded fear of gender‑based persecution in national service, found no state protection or viable IFA, and set aside the RPD decision under s.111(1)(b) IRPA, allowing the appeals.

Citation
TB8-26245
Parties
Principal Appellant: XXXX XXXX XXXX; Spousal Appellant: XXXX XXXX XXXX; First Minor Appellant: XXXX XXXX XXXX; Second Minor Appellant: XXXX XXXX XXXX; Third Minor Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
19 March 2019
Procedural Posture
Refugee Protection Appeal / Decision on Appeal (reasons)
Outcome
Appeals allowed; RPD determination set aside; appellants found to be Convention refugees.
Legal Topics
Identity Evidence, Admissibility of New Evidence, National Service/desertion, Gender Based Persecution, State Protection, Internal Flight Alternative
Source Language
English
Immigration Law Refugee Law Administrative Law Identity Evidence Admissibility of New Evidence National Service/desertion Gender Based Persecution State Protection +1 more

Case Brief

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Spousal Appellant

XXXX XXXX XXXX

First Minor Appellant

XXXX XXXX XXXX

Second Minor Appellant

XXXX XXXX XXXX

Third Minor Appellant

Procedural Posture

Refugee Protection Appeal / Decision on Appeal (reasons)

Legal Issues

  1. 1 Whether the appellants established their identities
  2. 2 Whether the consular letter and RAD decision are admissible as new evidence under s.110(4) IRPA
  3. 3 Whether the Principal Appellant faces persecution for desertion and the others for gender-based harms in national service

Ratio Decidendi

The RAD accepted the Eritrean Consulate General letter as new evidence under s.110(4) IRPA and Singh/Raza factors, overturned the RPD's finding that identity was not established, substituted a finding on the balance of probabilities that the appellants are Eritrean, found the Principal Appellant faces a well‑founded fear of persecution for desertion (imputed political opinion) and the other appellants face a well‑founded fear of gender‑based persecution in national service, found no state protection or viable IFA, and set aside the RPD decision under s.111(1)(b) IRPA, allowing the appeals.

Court Disposition

Appeals allowed; RPD determination set aside; appellants found to be Convention refugees.

Orders

  • Set aside the RPD decision pursuant to s.111(1)(b) IRPA
  • Substitute determination that the appellants are Convention refugees (Principal Appellant: persecuted for imputed political opinion as draft evader; others: persecuted as women during national service)