VC2-09550

VC2-09550

On independent review the RAD allowed the appeal and substituted a decision finding the appellant is a Convention refugee based on a sur place/perceived political opinion; the RAD held that while the appellant committed identity fraud by using another person's passport and green card, the offence does not meet the Article 1F(b) "serious" threshold when weighing elements, mode of prosecution, likely sentencing range and mitigating factors (non‑violent, private motive, minimal societal harm), and that the accepted new evidence did not change exclusion analysis to warrant exclusion.

Citation
VC2-09550
Parties
Appellant: XXXX XXXX; Respondent/intervenor: Ministers (Public Safety and Emergency Preparedness; Immigration, Refugees and Citizenship)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
13 February 2023
Procedural Posture
Refugee Appeal (refugee Appeal Division) / Decision on Appeal Substituted Decision Issued
Outcome
Appeal allowed; RAD substitutes its decision that the Appellant is a Convention refugee based on perceived political opinion (sur place)
Legal Topics
Article 1 F(b) Exclusion, Sur Place/perceived Political Opinion, New Evidence Admissibility (s.110(4)), Credibility Findings, Identity Fraud (criminal Code S.403), Oral Hearing (s.110(6))
Source Language
English
Immigration Law Refugee Law Administrative Law Criminal Law Evidence Law Article 1 F(b) Exclusion Sur Place/perceived Political Opinion New Evidence Admissibility (s.110(4)) +3 more

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Parties

XXXX XXXX

Appellant

Ministers (Public Safety and Emergency Preparedness; Immigration, Refugees and Citizenship)

Respondent/intervenor

Procedural Posture

Refugee Appeal (refugee Appeal Division) / Decision on Appeal Substituted Decision Issued

Legal Issues

  1. 1 Whether the appellant is excluded from refugee protection under Article 1F(b) for committing a serious non-political crime (identity fraud)
  2. 2 Whether the new evidence on appeal meets s.110(4) RPA criteria and is credible and relevant
  3. 3 Whether the appellant has a sur place claim based on perceived political opinion due to family association with a political dissident

Ratio Decidendi

On independent review the RAD allowed the appeal and substituted a decision finding the appellant is a Convention refugee based on a sur place/perceived political opinion; the RAD held that while the appellant committed identity fraud by using another person's passport and green card, the offence does not meet the Article 1F(b) "serious" threshold when weighing elements, mode of prosecution, likely sentencing range and mitigating factors (non‑violent, private motive, minimal societal harm), and that the accepted new evidence did not change exclusion analysis to warrant exclusion.

Court Disposition

Appeal allowed; RAD substitutes its decision that the Appellant is a Convention refugee based on perceived political opinion (sur place)

Orders

  • Appeal allowed and RPD decision set aside; substitute decision: Appellant is a Convention refugee
  • Appellant is not excluded under Article 1F(b) of the 1951 Convention/IRPA