MC0-04987

MC0-04987

The RAD allowed the appeal because the RPD erred in its assessment of the associate appellants' risk of persecution in the DRC arising from their mental health conditions; the record supports that the children could, on a balance of probabilities, obtain Congolese citizenship or renounce South African citizenship, and the RPD failed to properly analyze prospective risk to children with mental illness/autism given documentary evidence of societal mistreatment and inadequate mental health care in the DRC; the new evidence submitted to the RAD was inadmissible under s.110(4) IRPA but that did not cure the RPD's error which is determinative.

Citation
MC0-04987
Parties
Principal Appellant: XXXX XXXX XXXX; Associate Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX XXXX XXXX; Associate Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
16 February 2021
Procedural Posture
Refugee Protection Appeal (refugee Appeal Division) / RAD Decision (appeal Allowed and Remitted to RPD for Redetermination)
Outcome
Appeal allowed; matter referred to a differently constituted Refugee Protection Division panel for redetermination
Legal Topics
Renunciation of Citizenship, Acquisition of Citizenship, New Evidence Admissibility Under IRPA S.110(4), Sur Place and Disability Based Persecution, Standard of Review, Child Protection, Gender Related Persecution Guidelines, Mental Health and Persecution
Source Language
English
Immigration Law Refugee Law Citizenship and Nationality Law Administrative Law Human Rights Law Renunciation of Citizenship Acquisition of Citizenship New Evidence Admissibility Under IRPA S.110(4) +5 more

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Parties

XXXX XXXX XXXX

Principal Appellant

XXXX XXXX

Associate Appellant

XXXX XXXX XXXX XXXX

Associate Appellant

XXXX XXXX XXXX

Associate Appellant

Procedural Posture

Refugee Protection Appeal (refugee Appeal Division) / RAD Decision (appeal Allowed and Remitted to RPD for Redetermination)

Legal Issues

  1. 1 Whether the associate appellants can renounce South African citizenship or otherwise obtain Congolese citizenship
  2. 2 Whether the associate appellants face a well-founded fear of persecution in the DRC due to their health conditions (mental illness/autism)
  3. 3 Admissibility of new evidence submitted to the RAD under subsection 110(4) IRPA

Ratio Decidendi

The RAD allowed the appeal because the RPD erred in its assessment of the associate appellants' risk of persecution in the DRC arising from their mental health conditions; the record supports that the children could, on a balance of probabilities, obtain Congolese citizenship or renounce South African citizenship, and the RPD failed to properly analyze prospective risk to children with mental illness/autism given documentary evidence of societal mistreatment and inadequate mental health care in the DRC; the new evidence submitted to the RAD was inadmissible under s.110(4) IRPA but that did not cure the RPD's error which is determinative.

Court Disposition

Appeal allowed; matter referred to a differently constituted Refugee Protection Division panel for redetermination

Orders

  • Appeal allowed and matter referred to a differently constituted RPD panel for re-determination
  • RAD will proceed without an oral hearing as the new evidence was held inadmissible under subsection 110(4) IRPA