MB8-12690

MB8-12690

The RAD allowed the appeal because the RPD erred in law by treating the appellant as holding Brazilian status at the time of the RPD hearing; evidence showed he had been absent from Brazil for more than two years as of the last hearing date, so Article 1E exclusion could not properly be applied and the matter must be referred to the RPD for redetermination.

Citation
MB8-12690
Parties
Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
25 April 2019
Procedural Posture
Refugee Appeal / Appeal to Refugee Appeal Division (rad) Decision and Referral
Outcome
appeal allowed; matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA
Legal Topics
Exclusion Under Article 1 E, Permanent Residency Loss, Standard of Review, Referral for Redetermination
Source Language
English
Immigration Law Refugee Law Administrative Law Exclusion Under Article 1 E Permanent Residency Loss Standard of Review Referral for Redetermination

Case Brief

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Parties

XXXX XXXX

Appellant

Procedural Posture

Refugee Appeal / Appeal to Refugee Appeal Division (rad) Decision and Referral

Legal Issues

  1. 1 Whether the appellant was excluded under Article 1E of the UN Refugee Convention due to Brazilian permanent resident rights
  2. 2 Whether the appellant had forfeited Brazilian permanent residency by being absent from Brazil for more than two years prior to the last day of the RPD hearing
  3. 3 Whether the RPD erred in law in assessing the appellant's status in Brazil as of the RPD hearing

Ratio Decidendi

The RAD allowed the appeal because the RPD erred in law by treating the appellant as holding Brazilian status at the time of the RPD hearing; evidence showed he had been absent from Brazil for more than two years as of the last hearing date, so Article 1E exclusion could not properly be applied and the matter must be referred to the RPD for redetermination.

Court Disposition

appeal allowed; matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA

Orders

  • Refer the matter to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act