TC0-03064

TC0-03064

The PA's appeal is allowed and substituted: on the totality of the evidence, including corroborating documents and country information showing systemic homophobia and police harassment in Nigeria, the PA's claim of same-sex sexual activity in Qatar is credible and establishes a well‑founded fear of persecution as a Convention refugee. The AA and the Minor Appellants' appeals are allowed insofar as the RAD finds the RPD failed to consider post‑arrival sur place evidence and did not properly assess certain corroborating evidence and the psychological report; therefore those matters must be remitted to the RPD for redetermination by a differently constituted panel.

Citation
TC0-03064
Parties
Principal Appellant: XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX; Minor Appellants: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX; Respondent: Minister; Designated Representative: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
17 November 2020
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Decision on Appeal / Substitution and Remittal
Outcome
Principal Appellant allowed and substituted as Convention refugee; Associate Appellant and Minor Appellants appeals allowed in part and remitted to RPD for redetermination by a differently‑constituted panel.
Legal Topics
Credibility Assessment, New Evidence (rule 29 / S.110(4) Irpa), Sur Place Claim, Natural Justice/right to Be Excused, Female Genital Mutilation (fgm), State Protection, Internal Flight Alternative
Source Language
English
Immigration Refugee Law Human Rights Credibility Assessment New Evidence (rule 29 / S.110(4) Irpa) Sur Place Claim Natural Justice/right to Be Excused Female Genital Mutilation (fgm) +2 more

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Parties

XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Associate Appellant

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX

Minor Appellants

Minister

Respondent

XXXX XXXX XXXX

Designated Representative

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Decision on Appeal / Substitution and Remittal

Legal Issues

  1. 1 Whether the RPD erred in its credibility findings regarding the Principal Appellant's alleged same-sex conduct abroad and in Canada
  2. 2 Whether new evidence (news articles) is admissible on appeal pursuant to Rule 29 and s.110(4) IRPA
  3. 3 Whether the RPD erred by failing to consider post-arrival material change (sur place) evidence relevant to the Associate Appellant and minors

Ratio Decidendi

The PA's appeal is allowed and substituted: on the totality of the evidence, including corroborating documents and country information showing systemic homophobia and police harassment in Nigeria, the PA's claim of same-sex sexual activity in Qatar is credible and establishes a well‑founded fear of persecution as a Convention refugee. The AA and the Minor Appellants' appeals are allowed insofar as the RAD finds the RPD failed to consider post‑arrival sur place evidence and did not properly assess certain corroborating evidence and the psychological report; therefore those matters must be remitted to the RPD for redetermination by a differently constituted panel.

Court Disposition

Principal Appellant allowed and substituted as Convention refugee; Associate Appellant and Minor Appellants appeals allowed in part and remitted to RPD for redetermination by a differently‑constituted panel.

Orders

  • Principal Appellant declared a Convention refugee and decision substituted pursuant to IRPA paragraph 111(1)(b)
  • Appeals of Associate Appellant and Minor Appellants remitted to the RPD for redetermination by a differently‑constituted panel pursuant to IRPA paragraph 111(1)(c)