TB7-11017

TB7-11017

On independent review the RAD found the Male Appellant was a victim of generalized crime in Guyana without sufficient evidence of targeting on the basis of Chinese ethnicity and therefore not a Convention refugee or person in need of protection; conversely, the RAD concluded the RPD erred in applying Article 1E to exclude the Principal and Minor Appellants because there was insufficient evidence that acquisition of Guyanese citizenship or status substantially similar thereto was virtually automatic, and because material credibility and state protection issues relating to China could not be fairly resolved without further fact‑finding, therefore those appeals were allowed and remitted to...

Citation
TB7-11017
Parties
Principal Appellant: XXXX XXXX; Male Appellant: XXXX XXXX XXXX; Minor Appellant: XXXX XXXX XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
3 February 2020
Procedural Posture
Refugee Appeal Redetermination / RAD Redetermination After Federal Court Judicial Review
Outcome
Male Appellant appeal dismissed; Principal and Minor Appellants appeals allowed in part and referred back to the RPD for redetermination by a differently constituted panel
Legal Topics
Article 1 E Exclusion, Convention Refugee Status, Sur Place Claim, State Protection, Admissibility of New Evidence, Credibility Assessment, Redetermination Procedure
Source Language
English
Immigration Law Refugee Law Administrative Law Article 1 E Exclusion Convention Refugee Status Sur Place Claim State Protection Admissibility of New Evidence +2 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Male Appellant

XXXX XXXX XXXX

Minor Appellant

Minister

Respondent

Procedural Posture

Refugee Appeal Redetermination / RAD Redetermination After Federal Court Judicial Review

Legal Issues

  1. 1 Whether Male Appellant has Convention nexus and faces persecution in Guyana owing to ethnicity
  2. 2 Whether Principal and Minor Appellants are excluded under Article 1E because they can obtain status substantially similar to Guyanese citizens
  3. 3 Whether Principal Appellant is a genuine Falun Gong practitioner (sur place claim) and whether further credibility testing is required

Ratio Decidendi

On independent review the RAD found the Male Appellant was a victim of generalized crime in Guyana without sufficient evidence of targeting on the basis of Chinese ethnicity and therefore not a Convention refugee or person in need of protection; conversely, the RAD concluded the RPD erred in applying Article 1E to exclude the Principal and Minor Appellants because there was insufficient evidence that acquisition of Guyanese citizenship or status substantially similar thereto was virtually automatic, and because material credibility and state protection issues relating to China could not be fairly resolved without further fact‑finding, therefore those appeals were allowed and remitted to...

Court Disposition

Male Appellant appeal dismissed; Principal and Minor Appellants appeals allowed in part and referred back to the RPD for redetermination by a differently constituted panel

Orders

  • Confirm RPD decision that Male Appellant is neither a Convention refugee nor a person in need of protection and dismiss his appeal
  • Allow Principal and Minor Appellants' appeals and refer their matters to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA