TC0-09676

TC0-09676

The RPD erred in finding a viable IFA because the husband retained legal rights and access to the children via ongoing divorce and custody proceedings, and given his history of violence and threats he had both the means and motivation to locate the Appellants in India; combined with consistent testimony and corroborating documents and objective country evidence showing ineffective police protection, the Appellants face a real risk of gender-based persecution and are Convention refugees.

Citation
TC0-09676
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX XXXX; Respondent: Minister
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
29 January 2021
Procedural Posture
Refugee Appeal to Refugee Appeal Division / Final Decision on Appeal
Outcome
Appeal allowed; RPD decision set aside and substituted with a determination that the Appellants are Convention refugees
Legal Topics
Internal Flight Alternative, State Protection, Credibility Assessment, Gender Based Persecution, Domestic Violence, Convention Refugee Determination
Source Language
English
Immigration Refugee Law Human Rights Family Law Administrative Law Internal Flight Alternative State Protection Credibility Assessment +3 more

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Associate Appellant

Minister

Respondent

Procedural Posture

Refugee Appeal to Refugee Appeal Division / Final Decision on Appeal

Legal Issues

  1. 1 Whether the Appellants are credible
  2. 2 Whether the Appellants have effective state protection in India
  3. 3 Whether the Appellants have a viable Internal Flight Alternative (IFA) in India

Ratio Decidendi

The RPD erred in finding a viable IFA because the husband retained legal rights and access to the children via ongoing divorce and custody proceedings, and given his history of violence and threats he had both the means and motivation to locate the Appellants in India; combined with consistent testimony and corroborating documents and objective country evidence showing ineffective police protection, the Appellants face a real risk of gender-based persecution and are Convention refugees.

Court Disposition

Appeal allowed; RPD decision set aside and substituted with a determination that the Appellants are Convention refugees

Orders

  • RPD determination set aside and substituted: Appellants are Convention refugees under IRPA s.111(1)(b)
  • Request for an oral hearing before the RAD denied