TB5-10822

TB5-10822

RAD confirmed RPD decision dismissing the husband's refugee claim because there was no nexus to a Convention ground and imprisonment for draft evasion (up to five years) and associated conditions did not amount to persecution or cruel and unusual treatment; RAD allowed the principal appellant's appeal in part and remitted her claim to a differently constituted RPD panel for redetermination because the RPD, despite finding her credible, did not adequately examine internal flight alternatives and other issues requiring further inquiry.

Citation
TB5-10822
Parties
Principal Appellant: XXXX XXXX; Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
9 December 2015
Procedural Posture
Refugee Protection Appeal / Appeal to Refugee Appeal Division (rad) Decision on Confirmation and Remittal
Outcome
With respect to XXXX XXXX (husband) the RAD confirms the RPD decision and dismisses the appeal; with respect to XXXX XXXX (principal appellant) the RAD allows the appeal in part and refers the matter to the RPD for redetermination by a differently constituted panel.
Legal Topics
Refugee Claim, Internal Flight Alternative, Conscientious Objection, Military Conscription, Credibility Findings, Standard of Review, Remittal for Redetermination, Cruel and Unusual Punishment
Source Language
English
Immigration Law Refugee Law Administrative Law International Human Rights Law Refugee Claim Internal Flight Alternative Conscientious Objection Military Conscription +4 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Appellant

Procedural Posture

Refugee Protection Appeal / Appeal to Refugee Appeal Division (rad) Decision on Confirmation and Remittal

Legal Issues

  1. 1 Whether the RPD erred by ignoring evidence and by applying the wrong legal test (mere possibility/serious possibility)
  2. 2 Whether the principal appellant would face persecution on return for political opinion and whether state protection is available
  3. 3 Whether an internal flight alternative (IFA) to Kiev or elsewhere is available

Ratio Decidendi

RAD confirmed RPD decision dismissing the husband's refugee claim because there was no nexus to a Convention ground and imprisonment for draft evasion (up to five years) and associated conditions did not amount to persecution or cruel and unusual treatment; RAD allowed the principal appellant's appeal in part and remitted her claim to a differently constituted RPD panel for redetermination because the RPD, despite finding her credible, did not adequately examine internal flight alternatives and other issues requiring further inquiry.

Court Disposition

With respect to XXXX XXXX (husband) the RAD confirms the RPD decision and dismisses the appeal; with respect to XXXX XXXX (principal appellant) the RAD allows the appeal in part and refers the matter to the RPD for redetermination by a differently constituted panel.

Orders

  • Appeal of XXXX XXXX dismissed; decision of the Refugee Protection Division confirmed pursuant to IRPA s.111(1)(a)
  • Appeal of XXXX XXXX allowed in part; matter referred to the Refugee Protection Division for redetermination by a differently constituted panel pursuant to IRPA s.111(1)(c)