TB9-01680

TB9-01680

The RAD admitted the new affidavits and circular as credible, relevant and new under s.110(4) IRPA and, on independent assessment, found the documents established a serious possibility of persecution because the appellants were accused of aiding same sex practice, the law criminalizes such conduct with severe penalties, state protection would not be forthcoming and no internal flight alternative existed; therefore the RAD set aside the RPD decision and substituted its own determination that the appellants are Convention refugees under s.111(1)(b) IRPA.

Citation
TB9-01680
Parties
Principal Appellant: XXXX XXXX XXXX; Associate Appellants: XXXX XXXX XXXX XXXX XXXX XXXX XXXX; Respondent: Minister (Respondent)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
17 March 2020
Procedural Posture
Refugee Appeal / Appeal to Refugee Appeal Division; Hearing and Substitution of RPD Determination
Outcome
Appeal allowed; RPD determination set aside; appellants declared Convention refugees
Legal Topics
Convention Refugee Determination, Internal Flight Alternative, Admissibility of Fresh Evidence Under S.110(4) IRPA, Persecution on Account of Sexual Orientation, State Protection Assessment, Standard of Review
Source Language
English
Immigration Law Refugee Law Administrative Law Human Rights Law Convention Refugee Determination Internal Flight Alternative Admissibility of Fresh Evidence Under S.110(4) IRPA Persecution on Account of Sexual Orientation +2 more

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX XXXX XXXX XXXX XXXX

Associate Appellants

Minister (Respondent)

Respondent

Procedural Posture

Refugee Appeal / Appeal to Refugee Appeal Division; Hearing and Substitution of RPD Determination

Legal Issues

  1. 1 Whether the RAD should admit new evidence under s.110(4) IRPA
  2. 2 Whether the Appellants face a serious possibility of persecution on return to Nigeria because of the Principal Appellant's husband's bisexuality and the Appellants' support for him
  3. 3 Whether adequate state protection is available

Ratio Decidendi

The RAD admitted the new affidavits and circular as credible, relevant and new under s.110(4) IRPA and, on independent assessment, found the documents established a serious possibility of persecution because the appellants were accused of aiding same sex practice, the law criminalizes such conduct with severe penalties, state protection would not be forthcoming and no internal flight alternative existed; therefore the RAD set aside the RPD decision and substituted its own determination that the appellants are Convention refugees under s.111(1)(b) IRPA.

Court Disposition

Appeal allowed; RPD determination set aside; appellants declared Convention refugees

Orders

  • Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees.
  • New evidence (affidavits and circular) admitted under s.110(4) IRPA.