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The Federal Court dismissed an application for judicial review of a RAD decision, finding a viable internal flight alternative in Lima, Peru.
The Federal Court dismissed a judicial review of a Refugee Appeal Division decision, finding the process fair and the credibility and HIV-risk findings reasonable.
Appellant's credibility was fundamentally undermined by provision of altered and fraudulent documents and implausible testimony; admitted country evidence does not establish that appellant's HIV status, given his profile, exposes him to persecution or risk meeting the section 97 threshold; new evidence was largely inadmissible and did not alter risk assessment; therefore RAD confirms RPD negative decision and dismisses appeal under IRPA.
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The RPD was correct that discrimination or stigma associated with HIV in Nigeria does not, on the available evidence, amount to persecution because adequate treatment and anti-discrimination measures exist; there is insufficient credible evidence that the alleged OLA youths or extended family would be present in or would travel to Abuja or Port Harcourt to locate and persecute the Appellants; accordingly there is no serious possibility of persecution in those cities and they constitute viable IFAs, so the Appellants are not Convention refugees nor persons in need of protection.
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Federal Court held the RAD’s refugee decision unreasonable, citing unsupported credibility inferences and failure to engage with HIV-related evidence.
The claimant was found credible and demonstrated on a balance of probabilities that he faces a well‑founded risk of persecution as a homosexual, HIV‑positive man, that state protection is unavailable due to police complicity and corruption, and that no internal flight alternative exists; therefore he is a Convention refugee.
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The RAD upheld enough of the RPD's adverse credibility findings and found additional inconsistencies and failures to corroborate which, cumulatively, rebutted the presumption of truth; the Appellants' return to Angola and delay in claiming asylum were inconsistent with the alleged fear; available evidence did not establish that HIV‑related discrimination would amount to persecution; therefore the RPD decision rejecting refugee protection was confirmed.
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The Federal Court dismissed Mr. Gill’s judicial review of an H&C refusal, finding the officer reasonably considered his HIV status, family ties, and evidence.
The RAD found the RPD's general adverse credibility finding was based on flawed reasoning; although the discrepancy between two Marriage Certificates' signatures justified treating that document with no weight, that sole issue did not support an overall negative credibility finding. Because the record is incomplete and the RAD cannot properly substitute a decision, the matter is referred back to the RPD for redetermination by a differently constituted panel under s.111(1)(c) IRPA.
Source excerpt
The Federal Court dismissed judicial review of an RPD decision, finding the credibility assessment, state protection analysis, and HIV-discrimination findings were reasonable.
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