TB5-14096

TB5-14096

The RAD held that the minor is a member of a particular social group by virtue of her age (an innate, unchangeable characteristic) and that denial of life‑saving treatment in Nigeria on the basis of age amounts to persecution establishing refugee status under s.96; however, the claim under s.97 is excluded because the denial arises from state policy decisions and economic considerations under s.97(1)(b)(iv) (the state is unwilling to provide long‑term care), and the adult respondents lack individual nexus and personal risk sufficient to be refugees or persons in need of protection, so the RPD determination is set aside in part and substituted accordingly.

Citation
TB5-14096
Parties
Adult Respondent: XXXX XXXX XXXX XXXX; Minor Respondent: XXXX XXXX XXXX XXXX; Appellant: Minister (Appellant)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
23 February 2016
Procedural Posture
Refugee Appeal From Refugee Protection Division Determination / Appeal Considered by Refugee Appeal Division; No New Evidence and No S.110(6) Hearing Requested
Outcome
Appeal allowed in part: RAD confirms RPD finding that the minor is a Convention refugee (s.96 IRPA); RAD sets aside RPD determination as to persons in need of protection and adult respondents and substitutes that the minor is not a person in need of protection (s.97 IRPA) and that the adult respondents are neither...
Legal Topics
Convention Refugee, Person in Need of Protection, Particular Social Group, Medical Treatment Denial, Nexus to Convention Grounds, Section 97(1)(b)(iv) Exclusion
Source Language
English
Immigration Law Refugee Law Convention Refugee Person in Need of Protection Particular Social Group Medical Treatment Denial Nexus to Convention Grounds Section 97(1)(b)(iv) Exclusion

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

XXXX XXXX XXXX XXXX

Adult Respondent

XXXX XXXX XXXX XXXX

Minor Respondent

Minister (Appellant)

Appellant

Procedural Posture

Refugee Appeal From Refugee Protection Division Determination / Appeal Considered by Refugee Appeal Division; No New Evidence and No S.110(6) Hearing Requested

Legal Issues

  1. 1 Whether the minor respondent has nexus to a Convention ground through membership in a particular social group (age/minors)
  2. 2 Whether denial or unavailability of life‑saving medical treatment constitutes persecution or is excluded under s.97(1)(b)(iv)
  3. 3 Whether adult respondents have a well‑founded fear of persecution or would face cruel and unusual treatment if returned

Ratio Decidendi

The RAD held that the minor is a member of a particular social group by virtue of her age (an innate, unchangeable characteristic) and that denial of life‑saving treatment in Nigeria on the basis of age amounts to persecution establishing refugee status under s.96; however, the claim under s.97 is excluded because the denial arises from state policy decisions and economic considerations under s.97(1)(b)(iv) (the state is unwilling to provide long‑term care), and the adult respondents lack individual nexus and personal risk sufficient to be refugees or persons in need of protection, so the RPD determination is set aside in part and substituted accordingly.

Court Disposition

Appeal allowed in part: RAD confirms RPD finding that the minor is a Convention refugee (s.96 IRPA); RAD sets aside RPD determination as to persons in need of protection and adult respondents and substitutes that the minor is not a person in need of protection (s.97 IRPA) and that the adult respondents are neither...

Orders

  • Pursuant to s.111(1)(a) IRPA confirm RPD finding that the minor respondent is a Convention refugee within the meaning of s.96 IRPA
  • Pursuant to s.111(1)(b) IRPA set aside the RPD determination and substitute that the minor respondent is not a person in need of protection within the meaning of s.97 IRPA