MB6-02245

MB6-02245

The RAD found the RPD erred in law and fact by improperly relying on omissions and delay without affording opportunity to explain, by minimizing the cumulative effect of discrimination in the Jordanian context and ignoring nexus as supporters/defenders of perceived LGBTI persons, and by failing to find state protection; admitting limited new evidence (paras 44–46) and applying correctness, the RAD substituted the RPD decision and determined, on the evidence before the RPD, that the appellants are Convention refugees under s.96 IRPA because the cumulative discrimination and likely escalation to violence amount to persecution and there is no adequate state protection.

Citation
MB6-02245
Parties
Appellant: XXXXXXXXX XXXXXX; Appellant: XXXXXXXX XXXXXXX; Appellant: XXXXXX XXXX; Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
7 April 2017
Procedural Posture
Refugee Appeal (refugee Appeal Division) Under the Immigration and Refugee Protection Act / Decision on Appeal — RAD Substituted RPD Determination Under S.111 IRPA
Outcome
Appeal allowed; RPD decision set aside and substituted
Legal Topics
Refugee Protection, Convention Refugee, Particular Social Group, Admissibility of New Evidence, Standard of Review, Persecution Vs Discrimination, State Protection, Oral Hearing
Source Language
English
Immigration Refugee Law Administrative Law Refugee Protection Convention Refugee Particular Social Group Admissibility of New Evidence Standard of Review +3 more

Case Brief

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Parties

XXXXXXXXX XXXXXX

Appellant

XXXXXXXX XXXXXXX

Appellant

XXXXXX XXXX

Appellant

XXXX XXXX

Appellant

Procedural Posture

Refugee Appeal (refugee Appeal Division) Under the Immigration and Refugee Protection Act / Decision on Appeal — RAD Substituted RPD Determination Under S.111 IRPA

Legal Issues

  1. 1 admissibility of new evidence under s.110(4) IRPA
  2. 2 assessment of subjective fear of persecution
  3. 3 whether cumulative discrimination amounts to persecution

Ratio Decidendi

The RAD found the RPD erred in law and fact by improperly relying on omissions and delay without affording opportunity to explain, by minimizing the cumulative effect of discrimination in the Jordanian context and ignoring nexus as supporters/defenders of perceived LGBTI persons, and by failing to find state protection; admitting limited new evidence (paras 44–46) and applying correctness, the RAD substituted the RPD decision and determined, on the evidence before the RPD, that the appellants are Convention refugees under s.96 IRPA because the cumulative discrimination and likely escalation to violence amount to persecution and there is no adequate state protection.

Court Disposition

Appeal allowed; RPD decision set aside and substituted

Orders

  • Set aside the Refugee Protection Division decision dated April 5, 2016 and substitute the determination that the appellants are Convention refugees pursuant to section 96 of the Immigration and Refugee Protection Act
  • Admit paragraphs 44 to 46 of the principal appellant's affidavit as new evidence under s.110(4) IRPA; paragraphs 1–40 and 47–50 of the affidavit and the Clinical Report are inadmissible as new evidence