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The Federal Court dismissed a judicial review of a Refugee Appeal Division decision, finding the applicants had not shown reviewable error on Article 1E exclusion, state protection, or voluntariness.
The Federal Court dismissed judicial review of a RAD decision finding the applicant excluded under Article 1E because he had permanent residence in Spain.
The RAD confirmed the RPD: although the Appellant lost Spanish permanent residence after being absent for more than six months, he can re-acquire that status and Spain offers adequate state protection; the Appellant failed to rebut the presumption of state protection and therefore is excluded from refugee protection under Article 1E.
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Applying Zeng, the appellant had access to Brazilian permanent residence and voluntarily failed to acquire it; his departure from Brazil was voluntary and did not amount to persecution; he would have a safe and reasonable internal flight alternative in Port‑au‑Prince; balancing Zeng factors leads to exclusion under Article 1E and dismissal of the appeal.
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The RAD confirmed the RPD: the Principal and Associate Appellants have status substantially similar to South African nationals and the Associate had access to permanent residence (spousal sponsorship and other statutory routes) but chose not to apply, thus they are excluded under Article 1E/section 98 IRPA; the minor appellants are South African citizens and would not face a serious possibility of persecution from xenophobic violence on the balance of probabilities; admitted new evidence did not alter these conclusions and credibility findings (including admission of false information to poli…
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The Appellants are excluded under Article 1E because the RPD and RAD properly found prima facie evidence they held Italian permanent resident status conferring rights substantially similar to nationals (ability to return, work, study, access social services), the Appellants failed to prove they lost that status, and they failed to rebut the presumption that state protection in Italy was available.
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Although the RPD made some analytic errors, the RAD confirmed the exclusion under Article 1E because (1) permanent residence in Brazil confers rights substantially similar to Brazilian nationals; (2) the appellant could have acquired permanent residence via the ministerial regularization process but did not do so and, in any event, had voluntarily departed Brazil; and (3) on a balance of probabilities he would not face a personalized risk if returned to Haiti, so Canada would not breach international obligations by refusing protection.
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The appellant was excluded under Article 1E because he had held Brazilian permanent resident status that afforded rights substantially similar to nationals, he voluntarily lost that status (absence beyond permitted period without acceptable justification), he could not be expected to successfully reinstate status given legal and administrative uncertainty in Brazil, and he failed to prove on a balance of probabilities a credible risk of persecution in Haiti; therefore the RPD's exclusion determination was correct and the appeal was dismissed.
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On the balance of probabilities the appellant had been a permanent resident of Brazil with status substantially similar to nationals, lost that status by voluntarily remaining absent for more than two years, and her testimony contained material inconsistencies and omissions undermining her claim of persecution in Haiti; weighing the Zeng factors the appellant is excluded from refugee protection under Article 1E.
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The RAD confirmed the RPD: the appellant had held Brazilian permanent resident status substantially similar to nationals, lost it by voluntary absence of over two years, return and administrative recourse were not shown to be effective in his case, credibility contradictions undermined his claimed risk in Haiti, and balancing the Zeng factors therefore supports exclusion under Article 1E; appeal dismissed.
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