TB9-28915

TB9-28915

The RAD found that the RPD erred in law and fact by discounting objective evidence and relying on speculative alternative immigration options; on the evidence the Principal Appellant and the eldest Associate would face more than a mere possibility of persecution as failed asylum seekers (including on cumulative and intersecting grounds) and are therefore Convention refugees, while the remaining Associate, a US citizen who advanced no claim to the US, is not entitled to protection; RAD accordingly set aside the RPD decision and substituted a finding of Convention refugee for the two appellants.

Citation
TB9-28915
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
1 February 2021
Procedural Posture
Refugee Appeal (refugee Appeal Division Under Irpa) / Decision Reasons for Decision (appeal Allowed in Part)
Outcome
Appeal allowed in part: RPD decision set aside for the Principal Appellant and one Associate Appellant (substituted finding: Convention refugees); appeal dismissed for the Associate Appellant who is a US citizen.
Legal Topics
Convention Refugee Determination, Sur Place Claim, Credibility Assessment, National Service/conscription, Family Reunification, New Evidence/admissibility
Source Language
English
Immigration Law Refugee Law Administrative Law Convention Refugee Determination Sur Place Claim Credibility Assessment National Service/conscription Family Reunification +1 more

Case Brief

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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 (refugee Appeal Division Under Irpa) / Decision Reasons for Decision (appeal Allowed in Part)

Legal Issues

  1. 1 Whether the RPD erred in treating failure to claim in the USA as determinative
  2. 2 Whether the RPD erred in assessing the Appellants' credibility
  3. 3 Whether the RPD misconstrued or ignored objective country evidence

Ratio Decidendi

The RAD found that the RPD erred in law and fact by discounting objective evidence and relying on speculative alternative immigration options; on the evidence the Principal Appellant and the eldest Associate would face more than a mere possibility of persecution as failed asylum seekers (including on cumulative and intersecting grounds) and are therefore Convention refugees, while the remaining Associate, a US citizen who advanced no claim to the US, is not entitled to protection; RAD accordingly set aside the RPD decision and substituted a finding of Convention refugee for the two appellants.

Court Disposition

Appeal allowed in part: RPD decision set aside for the Principal Appellant and one Associate Appellant (substituted finding: Convention refugees); appeal dismissed for the Associate Appellant who is a US citizen.

Orders

  • Set aside the Refugee Protection Division decision in respect of the Principal Appellant and the Associate Appellant XXXX XXXX XXXX and substitute a determination that they are Convention refugees pursuant to IRPA para.111(1)(b).
  • Confirm the RPD decision with respect to the Associate Appellant XXXX XXXX XXXX (US citizen) that he is neither a Convention refugee nor a person in need of protection pursuant to IRPA para.111(1)(a).