MB9-10679

MB9-10679

The RPD erred by basing rejection on the appellant's lack of physical characteristics; on the record the appellant established a nexus by association to a family persecuted for imputed Roma ethnicity and therefore has a well-founded fear of persecution and is a refugee within s.96 IRPA; the RAD substitutes that determination and allows the appeal.

Citation
MB9-10679
Parties
Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
16 June 2020
Procedural Posture
Refugee Protection Appeal (immigration and Refugee Board Refugee Appeal Division) / Final Decision on Appeal (substitution)
Outcome
Appeal allowed; RPD decision set aside and replaced with a determination that the appellant is a refugee under section 96 of the IRPA.
Legal Topics
Refugee Protection, Particular Social Group, Persecution by Association, Procedural Fairness, Standard of Review
Source Language
English
Immigration Law Refugee Law Administrative Law Refugee Protection Particular Social Group Persecution by Association Procedural Fairness Standard of Review

Case Brief

Summary, issues, holding and outcome

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Parties

XXXX XXXX

Appellant

Procedural Posture

Refugee Protection Appeal (immigration and Refugee Board Refugee Appeal Division) / Final Decision on Appeal (substitution)

Legal Issues

  1. 1 Whether the Refugee Protection Division erred in rejecting the appellant's refugee claim while accepting the claims of her husband and children
  2. 2 Whether the appellant can be considered part of a particular social group by virtue of family nexus
  3. 3 Whether the appellant personally faces a risk of persecution by association with family members perceived as Roma/Gypsy

Ratio Decidendi

The RPD erred by basing rejection on the appellant's lack of physical characteristics; on the record the appellant established a nexus by association to a family persecuted for imputed Roma ethnicity and therefore has a well-founded fear of persecution and is a refugee within s.96 IRPA; the RAD substitutes that determination and allows the appeal.

Court Disposition

Appeal allowed; RPD decision set aside and replaced with a determination that the appellant is a refugee under section 96 of the IRPA.

Orders

  • Set aside the RPD determination and substitute a determination that the appellant is a refugee under section 96 of the Immigration and Refugee Protection Act
  • Appeal allowed