TB9-26532

TB9-26532

The RAD found the RPD erred in deeming the police report fraudulent without objective support and in treating the Appellants' fear as generalized; accepting the police report and the appellants' evidence, the RAD concluded the Appellants face a personalized risk from MS-13, state protection is inadequate and there is no internal flight alternative, and therefore under s.111(1)(b) IRPA the RAD set aside the RPD decision and substituted its own determination that the Appellants are persons in need of protection.

Citation
TB9-26532
Parties
Principal Appellant: XXXX XXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
19 February 2020
Procedural Posture
Refugee Appeal Under IRPA / Decision on Appeal (rad)
Outcome
Appeal allowed; RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are persons in need of protection pursuant to s.111(1)(b) IRPA.
Legal Topics
Credibility, State Protection, Internal Flight Alternative, Gang Violence, Generalized Risk Vs Personalized Risk
Source Language
English
Immigration Refugee Law Administrative Law Credibility State Protection Internal Flight Alternative Gang Violence Generalized Risk Vs Personalized Risk

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Parties

XXXX XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX XXXX XXXX

Associate Appellant

XXXX XXXX XXXX XXXX

Associate Appellant

Minister

Respondent

Procedural Posture

Refugee Appeal Under IRPA / Decision on Appeal (rad)

Legal Issues

  1. 1 Whether the RPD erred in finding the police report fraudulent and rejecting the incident of XXXX XXXX XXXX 2019 as not credible
  2. 2 Whether the Appellants face a generalized risk of criminality or a personalized risk from gang MS-13
  3. 3 Whether state protection and internal flight alternative were available to the Appellants

Ratio Decidendi

The RAD found the RPD erred in deeming the police report fraudulent without objective support and in treating the Appellants' fear as generalized; accepting the police report and the appellants' evidence, the RAD concluded the Appellants face a personalized risk from MS-13, state protection is inadequate and there is no internal flight alternative, and therefore under s.111(1)(b) IRPA the RAD set aside the RPD decision and substituted its own determination that the Appellants are persons in need of protection.

Court Disposition

Appeal allowed; RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are persons in need of protection pursuant to s.111(1)(b) IRPA.

Orders

  • Set aside the RPD determination dated September 10, 2019
  • Substitute determination that the Appellants are persons in need of protection pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act