VC0-00912

VC0-00912

The RAD upheld the RPD: the Indiana sexual misconduct conviction is equivalent to Canadian sexual assault (s.271) and is a serious non-political crime; sworn US police and victim affidavits carried weight and were not rebutted; the proposed TB affidavit was not new or reasonably unavailable under s.110(4) IRPA and was rejected; the requirements for an oral hearing under s.110(6) IRPA were not met; there was no reasonable apprehension of bias or breach of procedural fairness; therefore there are serious reasons for considering exclusion under Article 1F(b) and the appeal is dismissed.

Citation
VC0-00912
Parties
Appellant: XXXX XXXX; Minister (intervenor): Minister of Public Safety and Emergency Preparedness
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
9 April 2021
Procedural Posture
Refugee Protection Appeal / Refugee Appeal Division Decision
Outcome
Appeal dismissed; RPD decision upheld; Appellant excluded under Article 1F(b) and found not to be a refugee nor a person in need of protection pursuant to s.111(1)(a) IRPA.
Legal Topics
Article 1 F(b) Exclusion, Credibility Assessment, Admissibility of New Evidence S.110(4) IRPA, Oral Hearing S.110(6) IRPA, Equivalency of Foreign Offence to Canadian Offence, Procedural Fairness and Bias, Mitigating and Aggravating Circumstances
Source Language
English
Immigration Law Refugee Law Criminal Law Administrative Law Article 1 F(b) Exclusion Credibility Assessment Admissibility of New Evidence S.110(4) IRPA Oral Hearing S.110(6) IRPA +3 more

Case Brief

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Parties

XXXX XXXX

Appellant

Minister of Public Safety and Emergency Preparedness

Minister (intervenor)

Procedural Posture

Refugee Protection Appeal / Refugee Appeal Division Decision

Legal Issues

  1. 1 Whether Appellant is excluded under Article 1F(b) for serious non-political crime committed outside country of refuge
  2. 2 Whether the Indiana sexual misconduct conviction is equivalent to sexual assault under s.271 Criminal Code (Canada)
  3. 3 Credibility of police affidavits and victim LR testimony and impact on exclusion finding

Ratio Decidendi

The RAD upheld the RPD: the Indiana sexual misconduct conviction is equivalent to Canadian sexual assault (s.271) and is a serious non-political crime; sworn US police and victim affidavits carried weight and were not rebutted; the proposed TB affidavit was not new or reasonably unavailable under s.110(4) IRPA and was rejected; the requirements for an oral hearing under s.110(6) IRPA were not met; there was no reasonable apprehension of bias or breach of procedural fairness; therefore there are serious reasons for considering exclusion under Article 1F(b) and the appeal is dismissed.

Court Disposition

Appeal dismissed; RPD decision upheld; Appellant excluded under Article 1F(b) and found not to be a refugee nor a person in need of protection pursuant to s.111(1)(a) IRPA.

Orders

  • Affidavit by TB rejected as new evidence under s.110(4) IRPA
  • No oral hearing granted under s.110(6) IRPA