TC0-05568

TC0-05568

The RAD confirmed the RPD's adverse credibility findings against the Principal Appellant and the minors and dismissed their claims, but found the RPD misapplied the Zeng/Shamlou exclusion framework for the Associate Appellant by conflating spousal permit entitlements with permanent residence and failing to assess risk, state protection and internal flight alternative in Morocco; accordingly the Associate Appellant's claim must be returned to the RPD for re-determination by a differently constituted panel.

Citation
TC0-05568
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX; Minor Appellant: XXXX XXXX XXXX; Minor Appellant: XXXX XXXX XXXX XXXX; Respondent: Minister (respondent)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
7 January 2021
Procedural Posture
Refugee Appeal From Refugee Protection Division Decision / Refugee Appeal Division Amended Decision (reconsideration and Remittal)
Outcome
Confirm in part and refer in part: Principal Appellant and Minor Appellants' claims dismissed; Associate Appellant's claim referred back to the RPD for re-determination by a differently constituted panel.
Legal Topics
Credibility Assessment, Exclusion Under Article 1 E/section 98 IRPA, Procedural Fairness and Counsel Incompetence, Admission of New Evidence (section 110(4) Irpa), Country Risk Assessment, Internal Flight Alternative, State Protection, Gender Related Persecution
Source Language
English
Immigration Law Refugee Law Administrative Law Credibility Assessment Exclusion Under Article 1 E/section 98 IRPA Procedural Fairness and Counsel Incompetence Admission of New Evidence (section 110(4) Irpa) Country Risk Assessment +3 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant

XXXX XXXX XXXX

Minor Appellant

XXXX XXXX XXXX XXXX

Minor Appellant

Minister (respondent)

Respondent

Procedural Posture

Refugee Appeal From Refugee Protection Division Decision / Refugee Appeal Division Amended Decision (reconsideration and Remittal)

Legal Issues

  1. 1 Whether the RPD was correct to reject Principal Appellant's claim for lack of credibility
  2. 2 Whether the Associate Appellant is excluded from refugee protection under Article 1E of the 1951 Convention and section 98 IRPA
  3. 3 Whether prior counsel's alleged incompetence denied procedural fairness and justifies admitting new evidence

Ratio Decidendi

The RAD confirmed the RPD's adverse credibility findings against the Principal Appellant and the minors and dismissed their claims, but found the RPD misapplied the Zeng/Shamlou exclusion framework for the Associate Appellant by conflating spousal permit entitlements with permanent residence and failing to assess risk, state protection and internal flight alternative in Morocco; accordingly the Associate Appellant's claim must be returned to the RPD for re-determination by a differently constituted panel.

Court Disposition

Confirm in part and refer in part: Principal Appellant and Minor Appellants' claims dismissed; Associate Appellant's claim referred back to the RPD for re-determination by a differently constituted panel.

Orders

  • Pursuant to IRPA s.111(1)(a) the RAD confirms the RPD decision that the Principal Appellant and the Minor Appellants are neither Convention refugees nor persons in need of protection.
  • Pursuant to IRPA s.111(1)(c) the RAD refers the Associate Appellant's claim to the RPD for re-determination by a differently constituted panel.