TB4-12468

TB4-12468

The RAD found that although the RPD's adverse credibility and subjective fear findings were supportable on the record, the RPD failed to address the specific religious component (husband's conversion) and did not assess a possible Internal Flight Alternative; accordingly the Appellant's appeal is allowed and the matter is remitted to a differently constituted RPD panel to examine the religious aspect and the viability of an IFA. The Minister's appeal concerning the minor is dismissed: on independent review the RAD found the minor is developmentally disabled, that objective evidence establishes risk and lack of state protection amounting to persecution, and confirmed the RPD's finding that...

Citation
TB4-12468
Parties
Appellant: XXXXXXXXXX; Respondent (minor): XXXXXXXXXX; Intervener and Appellant on Minor's Appeal: Minister of Citizenship and Immigration
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
26 March 2015
Procedural Posture
Refugee Appeal (rad Review of RPD Decision) / Appeal Decision and Remittal Order Issued by Refugee Appeal Division
Outcome
Partially allowed: Appellant's appeal allowed in part and remitted; Minister's appeal concerning minor dismissed and RPD decision confirming minor as Convention refugee upheld
Legal Topics
Credibility Findings, Internal Flight Alternative, Section 97 IRPA Objective Risk, State Protection, Convention Refugee Determination, Disability and Nexus
Source Language
English
Immigration Refugee Law Administrative Law Credibility Findings Internal Flight Alternative Section 97 IRPA Objective Risk State Protection Convention Refugee Determination +1 more

Case Brief

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Parties

XXXXXXXXXX

Appellant

XXXXXXXXXX

Respondent (minor)

Minister of Citizenship and Immigration

Intervener and Appellant on Minor's Appeal

Procedural Posture

Refugee Appeal (rad Review of RPD Decision) / Appeal Decision and Remittal Order Issued by Refugee Appeal Division

Legal Issues

  1. 1 Whether the RPD erred by applying credibility findings to s.97 without separate objective analysis
  2. 2 Whether the RPD's adverse credibility findings were justified
  3. 3 Whether the Appellant had subjective fear given re‑availment and travel history

Ratio Decidendi

The RAD found that although the RPD's adverse credibility and subjective fear findings were supportable on the record, the RPD failed to address the specific religious component (husband's conversion) and did not assess a possible Internal Flight Alternative; accordingly the Appellant's appeal is allowed and the matter is remitted to a differently constituted RPD panel to examine the religious aspect and the viability of an IFA. The Minister's appeal concerning the minor is dismissed: on independent review the RAD found the minor is developmentally disabled, that objective evidence establishes risk and lack of state protection amounting to persecution, and confirmed the RPD's finding that...

Court Disposition

Partially allowed: Appellant's appeal allowed in part and remitted; Minister's appeal concerning minor dismissed and RPD decision confirming minor as Convention refugee upheld

Orders

  • Pursuant to sections 111(1)(c) and 111(2) of the IRPA, remit Appellant's claim to the Refugee Protection Division for redetermination by a differently constituted panel with directions to examine the religious component of the claim and to consider the viability of an Internal Flight Alternative
  • Confirm the RPD decision granting Convention refugee status to the minor respondent and dismiss the Minister's appeal respecting the minor