TB4-11627

TB4-11627

The RAD set aside the RPD decision and substituted its own determination that the appellant is a person in need of protection under s.97 IRPA because the RPD erred by failing to assess forward‑looking risk tied to the appellant's accepted profile as a human rights activist and by improperly discounting corroborating documentary evidence; although the appellant lacked subjective fear (precluding Convention refugee status), objective country and profile‑based evidence rebutted adequate state protection and no viable internal flight alternative exists, establishing a risk to life and cruel and unusual treatment on balance of probabilities.

Citation
TB4-11627
Parties
Appellant: XXXX XXXX; Respondent (intervener): Minister of Citizenship and Immigration
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
30 March 2015
Procedural Posture
Refugee Protection Appeal Under IRPA / Appeal to Refugee Appeal Division From Refugee Protection Division Decision (rad Substituted Determination)
Outcome
Appeal allowed; RPD determination set aside and substituted
Legal Topics
RAD Appellate Role and Standard, Deference to RPD Findings, Credibility Assessment, State Protection, Internal Flight Alternative, Admissibility of New Evidence, Remedies Under IRPA S111
Source Language
English
Immigration Law Refugee Law Administrative Law RAD Appellate Role and Standard Deference to RPD Findings Credibility Assessment State Protection Internal Flight Alternative +2 more

Case Brief

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Parties

XXXX XXXX

Appellant

Minister of Citizenship and Immigration

Respondent (intervener)

Procedural Posture

Refugee Protection Appeal Under IRPA / Appeal to Refugee Appeal Division From Refugee Protection Division Decision (rad Substituted Determination)

Legal Issues

  1. 1 What is the nature and standard of review for RAD appeals and the scope of deference to RPD findings
  2. 2 Whether the RPD erred by failing to conduct a forward‑looking risk assessment despite accepting the appellant's profile as a human rights activist
  3. 3 Whether the RPD improperly discounted or failed to address corroborating documentary evidence and letters

Ratio Decidendi

The RAD set aside the RPD decision and substituted its own determination that the appellant is a person in need of protection under s.97 IRPA because the RPD erred by failing to assess forward‑looking risk tied to the appellant's accepted profile as a human rights activist and by improperly discounting corroborating documentary evidence; although the appellant lacked subjective fear (precluding Convention refugee status), objective country and profile‑based evidence rebutted adequate state protection and no viable internal flight alternative exists, establishing a risk to life and cruel and unusual treatment on balance of probabilities.

Court Disposition

Appeal allowed; RPD determination set aside and substituted

Orders

  • Pursuant to IRPA s.111(1)(b) set aside the determination of the Refugee Protection Division and substitute a determination that the Appellant is a person in need of protection (s.97 IRPA)