Decisions

Chairperson's Guidelines

Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board

TC2-22658 – Nigeria July 2024​ 

This decision applies concepts from Guideline 3 in assessing whether a 12-year-old girl is a Convention refugee. Paragraphs 28 to 33, 36, and 42 apply concepts from section 9.1 (persecution), section 9.3 (internal flight alternative), and section 9.4 (state protection).

VC2-05525 – Thailand October 2023 

A decision that considers whether a child, who was 13 years old at the time of RPD decision, holds a political opinion that would put her at risk of persecution.

TC1-12335 – China August 2023 

This decision provides an assessment of cumulative discrimination amounting to persecution in the context of a SOGIESC claim that involved allegations of trafficking, where theRAD considered the Appellant's mental health and G3 considerations for the minor child.

Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board

MC2-09861 – Haiti June 2023 

A decision that considers the rise of the political and security crisis in Haiti and the impact on violence against women. The RAD makes a distinction between gang violence, which was more localized before, and the current situation, which is believed to have increased the risk of Gender Based Violence throughout the capital and affects women from all social strata.

VC2-02458 – Philippines May 2023 

This decision confirms an RPD negative decision while considering the Gender Guideline; specifically addressing an allegation that trauma affected testimony and avoiding applying myths and stereotypes related to gender-based violence.

TC2-09366 – Mexico May 2023 

A decision concerning a male claimant who is a victim of gender-based violence; the analysis avoids applying myths and stereotypes related to gender-based violence.

TB9-20832 – Nigeria August 2020

Sets out a proper approach to claims involving gender-based violence, in accordance with the IRB's Gender Guidelines. The RAD pointed to various ways in which the approach of the RPD did not comply with the Guidelines, particularly in the manner in which it questioned the Appellant. The RPD Member's approach resulted in a breach of procedural fairness; the insensitive questioning re-traumatized the appellant and prevented her from presenting her case.

TB8-00811 – Somalia August 2020 

This decision thoroughly assesses identity and credibility findings in the case of an appellant with low literacy skills from Somalia. It applies Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution relating to sensitivity in questioning victims or witnesses of gender-based violence.

TB7-07363 – Lithuania December 2017

This decision considers a domestic violence claim through the lens of Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution.

Guideline 9: Proceedings before the IRB involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) 

TC3-07618 – Nigeria July 2024 

This decision succinctly overturns the RPD’s credibility findings and finds the Appellant is a Convention refugee based on their sexual orientation.​

TC1-12335 – China August 2023 

This decision provides an assessment of cumulative discrimination amounting to persecution in the context of a SOGIESC claim that involved allegations of trafficking, where the RAD considered the Appellant's mental health and G3 considerations for the minor child.

TC1-11620 – Tanzania May 2023 

A decision that provides a framework for applying the SOGIESC Guideline.

MB9-29401 – Algeria January 2022 

Provides an example of a trauma-informed approach to decision-making. In this case involving a victim of same-sex sexual violence in Algeria, the RAD found that the RPD did not appropriately apply Guideline 9 – Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression and erred in asking inappropriate questions, relying on stereotypes, and failing to consider the cultural context of the appellant's situation. The RAD substituted a positive decision.

TC1-04541 – Saint-Lucia November 2021 

Provides an example of the application of the updated Chairperson's Guideline 9 – Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC).

MB9-27753 – Nigeria November 2021 

Demonstrates the application of the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guideline). The RAD found that the RPD failed to properly apply the guideline by relying on stereotypes and incorrect assumptions. It is a Nigeria appeal in which the RAD substituted a positive decision, finding the appellant established her sexual orientation.

MB9-26284 – Cameroon March 2021 

Provides an example of applying Guideline 9 – Proceedings Before the IRB Involving Sexual Orientation and Gender identity and Expression to address a common error of equating sexual acts or attractions with identifying as homosexual. It is a Cameroon appeal in which the RAD substituted a positive decision.

TB8-18620 – Nigeria August 2020 

Dismisses an appeal on credibility grounds. The underlying basis of the claim related to the Appellant's asserted bisexual identity. The decision sets out the determinative issues clearly at the outset and upholds RPD findings that went unchallenged on appeal. The decision also addresses a sur place element of the claim arising from evidence from LGBTQ organizations, which the RAD found was insufficient to overcome the serious credibility concerns.

MB8-00387 – Nigeria June 2020

In this decision, the RAD highlighted the principle that refugee claimants cannot be expected to hide their sexual orientation in order to avoid persecution or other mistreatment. Citing Nwabueze 2019 FC 1577, the RAD found that an internal flight alternative (IFA) is not viable if an individual can only safely relocate by hiding their sexual orientation.

TB7-12847 – Jamaica September 2018

This decision examines credibility findings through the lens of the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

Compelling Reasons (subsection 108(4) of the Immigration and Refugee Protection Act)

TB8-24552 – Honduras May 2021 

Provides a clear framework for the application of the compelling reasons exception under s.108(4) of the IRPA where there has been a change in circumstances since the Appellant left their country of origin.

Credibility

TC3-07618 – Nigeria July 2024 

This decision succinctly overturns the RPD’s credibility findings and finds the Appellant is a Convention refugee based on their sexual orientation.​

TB8-11669 – Slovakia September 2022 

This decision addresses the relevance of information submitted by the Minister on appeal indicating that the Appellant had been charged with criminal offences in Canada. The RAD found that this evidence had no bearing on the assessment of the credibility of the Appellant's claim and did not support a finding that the Appellant had hidden criminal activity outside Canada.

TB9-23577 – India November 2021 

Provides a framework for assessing contradictions between port of entry interview notes and other evidence. The appellants provided contradictory reasons for why they left India during their initial interview at the port of entry, and it was only later at their second interview and in their Basis of Claim forms that they stated that they left India because they feared persecution or harm. The RAD confirmed the RPD's decision that this undermined the Appellant's credibility.

MC0-08998 – Nigeria March 2021 

An example of a decision that takes an intersectional approach (gender, family status and mental health) confirming a credibility-based RPD decision.

TB8-18620 – Nigeria August 2020 

Dismisses an appeal on credibility grounds. The underlying basis of the claim related to the Appellant's asserted bisexual identity. The decision sets out the determinative issues clearly at the outset and upholds RPD findings that went unchallenged on appeal. The decision also addresses a sur place element of the claim arising from evidence from LGBTQ organizations, which the RAD found was insufficient to overcome the serious credibility concerns.

TB8-05173 – Venezuela September 2019

This decision examines the issue of negative credibility inferences drawn from implausibility findings. It highlights that plausibility findings should be made "only in the clearest of cases.” In this appeal, the RAD has substituted a positive determination for the RPD's rejection of a claim for refugee protection.

Cumulative discrimination

TC1-06361 – Guatemala August 2023 

This decision examines the cumulative discrimination experienced by the appellant, an Indigenous Guatemalan of Mayan ethnicity and member of the Kaqchkel tribe, that amounted to persecution.

VC1-00029 – Chile April 2022 

An example of an analysis of cumulative discrimination with an intersectional approach. This case involves a combination of race, gender, and age and cumulative discrimination towards indigenous people in Chile.

MC0-05967 – Algeria January 2022 

Provides an example of an analysis of cumulative discrimination with an intersectional approach. In this case, involving a combination of political, religious, and ethnic grounds for a Christian man of Kabyle origin in Algeria, the RAD substituted a positive decision, finding that the cumulative effect of multiple types of discrimination amounted to persecution.

TB9-24114 – Hungary June 2020 

This decision examines the issue of cumulative discrimination amounting to persecution, in relation to Hungarian Roma refugee claimants. It includes an analysis of Federal Court jurisprudence and country conditions related to Roma in Hungary.

Exclusion

Article 1E

MB7-22589 – Brazil June 2018

This decision provides a thorough analysis of exclusion under Article 1E of the Refugee Convention in the case of a Haitian claimant with permanent resident status in Brazil.

Article 1F(a)

VC0-02981 – Iran September 2021 

This decision provides a thorough analysis of exclusion under Article 1F(a) of the Refugee Convention, taking into consideration the decision of the Supreme Court of Canada in Ezokola, 2013 SCC 40. In the decision, the RAD finds that the appellant was not complicit in crimes against humanity.

MB7-00072 – Lebanon April 2020 

This decision provides a thorough analysis of exclusion under Article 1F(a) of the Refugee Convention, taking into consideration the decision of the Supreme Court of Canada in Ezokola, 2013 SCC 40. It is an appeal involving allegations of complicity with ISIS in Lebanon.

VB6-04568 – Afghanistan August 2017

This decision provides a thorough exclusion analysis pursuant to Article 1F(a) of the Refugee Convention.

Article 1F(b)

VB9-06499 – Iran November 2021 

Provides an analysis of Article 1F(b) exclusion and the defense of danger of imminent harm under section 285 of the Criminal Code. It is a case in which the Minister argued that the Principal Respondent should be excluded from refugee protection pursuant to Article 1F(b) due to child abduction. The RAD outlines the factors applicable to the defence of danger of imminent harm and concludes that the defence is met, and the Principal Respondent is not excluded.

VB9-02860 – El Salvador April 2020 

This decision provides a thorough analysis of exclusion under Article 1F(b) of the Refugee Convention. It is an appeal involving allegations of identity fraud committed in the United States by appellants from El Salvador. In the decision, the RAD found that the RPD's consideration of the sentencing range applicable to the offences in question was inconsistent with the decision of the Supreme Court of Canada in Febles, 2014 SCC 68.

Family unity

MB8-19526 – Türkiye August 2020 

Clearly and concisely addresses an appeal of a US-born minor appellant and the concept of family unity, as it relates to refugee determination.

MB6-06938 – United States-Haiti June 2018

This decision considers the question of family unity and the best interests of the child in a case involving an American-born child of Haitian parents.

Identity

TB7-23779 – Somalia October 2020 

Provides a clearly written assessment of the issue of identity in Somalia. The RAD undertook its own analysis and agreed with the RPD on inconsistencies around the appellant's US refugee claim, his date of birth and an identity witness's affidavit, finding that there was insufficient evidence to establish the appellant's personal and national identity.

Internal flight alternative

TC1-20732 – India March 2023 

In this decision the RAD provides reasons for concluding that the Appellant does not have a viable internal flight alternative in India.

VC1-06733 – India March 2023 

In this decision the RAD provides reasons for concluding that the RPD was correct in concluding that the Appellant has a viable internal flight alternative in India.

TB9-26544 – Pakistan August 2021 

This decision outlines a situation in which an internal flight alternative (IFA) was found not to exist for the Appellant, a Shia adherent in Pakistan who faced threats by the Lashkar-e-Jhangvi (LeJ). While the RAD notes that the objective evidence about Shia is mixed, it found that in this case the LeJ had the means and motivation to locate the Appellant, due to his active role in the Shia community and the LeJ's belief that he had committed blasphemy.

MC0-08773 – Nigeria June 2021 

Provides an example of the RAD's assessment of psychological reports that the RPD failed to consider in determining the reasonableness of an internal flight alternative (IFA) in Nigeria.

MB8-03939 – India May 2021 

Provides an example of assessing internal flight alternative (IFA) in India, when the agent of persecution is a local state agent who lacks motivation to track the appellant to a different area of India.

TB9-18107 – Nigeria March 2021 

Provides an examination of how the family laws in Nigeria impact the internal flight alternative (IFA) analysis for an appellant with minor children.

TC0-09018 – Nigeria March 2021 

This decision assesses, and rejects, allegations of bias against an RPD decision-maker flowing from hearing room conduct. It also examines common internal flight alternative (IFA) issues in Nigeria.

MB9-21381 – India February 2021 

Provides an example where COVID-19 related evidence is admitted as new evidence, but the analysis shows that it poses only a generalized risk and is not connected to a Convention ground.

MB9-13938 – Nigeria February 2021 

Provides an example of how COVID-19 can exacerbate the vulnerabilities faced by some groups in the proposed internal flight alternative (IFA). The appellants submitted new evidence to show the general impact of COVID-19 in Nigeria as well as the gendered impact of COVID-19 on women. This was a split decision in which the female appellant was found not to have a viable IFA, but the male appellant did.

TB8-30580 – Nigeria June 2020 

This decision outlines a situation in which an internal flight alternative (IFA) was found not to exist for the Appellant, who was a victim of domestic violence in Nigeria. The RAD found that there was no viable IFA because the agent of persecution had the means and motivation to find the appellant and had previously tracked down the appellant.

MB8-00387 – Nigeria June 2020

In this decision, the RAD highlighted the principle that refugee claimants cannot be expected to hide their sexual orientation in order to avoid persecution or other mistreatment. Citing Nwabueze 2019 FC 1577, the RAD found that an internal flight alternative (IFA) is not viable if an individual can only safely relocate by hiding their sexual orientation.

VB9-01721 – Mexico June 2020 

This decision provides an examination of a specific situation of criminality and internal flight alternative (IFA) in Mexico. It does not purport to address all situations involving criminality, nor does it address multiple potential IFA locations in Mexico. The decision also provides an example as to when a decision-maker may directly consider the issue of IFA without first addressing credibility concerns, as considered by the Federal Court in Dakpokpo 2017 FC 580.

TB7-19851 – Nigeria April 2020

This decision provides a useful conceptual framework of analysis for considering the issue of internal flight alternatives (IFAs) for persons fleeing non-state actors in Nigeria. It sets out a list of factors to consider related to the reasonableness of a potential IFA. These factors are travel and transportation, language, education, employment, accommodation, health care, culture, indigeneship, and religion.

While this decision was formerly identified as a Jurisprudential Guide by the Chairperson, he revoked that designation due to evolving country information. The decision is now identified as a RAD Reasons of Interest due to the value of the framework of analysis, absent any of the factual findings. The framework includes the legal test for identifying a viable internal flight alternative as well as the seven factors set out at paragraphs 14-15 and 21-30. In this way, members may use the analytical framework to structure their assessment of the facts of each case as well as the most current country of origin information.

Intersectionality

TC1-06361 August 2023 

This decision examines the cumulative discrimination experienced by the appellant, an Indigenous Guatemalan of Mayan ethnicity and member of the Kaqchkel tribe, that amounted to persecution.

VC1-00029 – Chile April 2022 

An example of an analysis of cumulative discrimination with an intersectional approach. This case involves a combination of race, gender, and age and cumulative discrimination towards indigenous people in Chile.

MC0-05967 – Algeria January 2022 

Provides an example of an analysis of cumulative discrimination with an intersectional approach. In this case, involving a combination of political, religious, and ethnic grounds for a Christian man of Kabyle origin in Algeria, the RAD substituted a positive decision, finding that the cumulative effect of multiple types of discrimination amounted to persecution.

Minister appeals

TB8-11669 – Slovakia September 2022 

This decision addresses the relevance of information submitted by the Minister on appeal indicating that the Appellant had been charged with criminal offences in Canada. The RAD found that this evidence had no bearing on the assessment of the credibility of the Appellant's claim and did not support a finding that the Appellant had hidden criminal activity outside Canada.

VB8-05849 – Iran October 2020 

Dismisses a Minister's appeal of a positive RPD decision and cautions against bringing appeals based on speculative assessments of plausibility.

Natural justice / procedural fairness

MC1-03928 – Algeria October 2023 

An example of the RAD's treatment of allegations of bias against the RPD member, and on counsel misconduct where counsel had inappropriate behaviour and comments. RAD also provides a good explanation for how the RPD should handle a situation where the member has doubts that the person is using notes in a virtual hearing.

MC0-09401 – Haiti April 2022 

An example of the RAD remedying a procedural fairness issue. The RAD found that the RPD should have admitted documents into the record even though they were not clear copies. The RAD admitted the documents and applied them in its own analysis.

TC0-09018 – Nigeria March 2021 

This decision assesses, and rejects, allegations of bias against an RPD decision-maker flowing from hearing room conduct. It also examines common internal flight alternative (IFA) issues in Nigeria.

MC0-10247 – Mexico February 2021 

This decision addresses the RAD's ability to remedy a breach of procedural fairness by considering post-hearing evidence that the RPD failed to consider.

TB8-27166 – Nigeria October 2020 

Deals with a breach of natural justice for a case in which the testimony of a witness was not interpreted for the Appellant. The RAD found that the RPD breached the Appellant's right to understand the proceedings. The RAD sent it back to the RPD for redetermination.

TB9-18639 – Iran October 2020 

Addresses a procedural fairness issue in which the RPD member was overly stringent in applying the RPD rules. The RPD member did not allow new evidence or a witness to testify due to late notice. The RAD sent it back to the RPD for redetermination.

TB9-20832 – Nigeria August 2020

Sets out a proper approach to claims involving gender-based violence, in accordance with the IRB's Gender Guidelines. The RAD pointed to various ways in which the approach of the RPD did not comply with the Guidelines, particularly in the manner in which it questioned the Appellant. The RPD Member's approach resulted in a breach of procedural fairness; the insensitive questioning re-traumatized the appellant and prevented her from presenting her case.

VB8-01757 – Jordan June 2019

This decision considers the principle of stare decisis (following legal precedent) and the jurisdiction of the RAD to give directions to the RPD in its reasons for decision.

Nexus

VC2-06157 – Ukraine June 2023 

In this decision, the RAD considers the Minister's position that there is a nexus to the Convention ground of nationality arising from Russia's targeting of Ukrainians in the Ukraine-Russia conflict.

Point-first and plain language writing

TC3-07535 – United States and Nigeria October 2023 

This decision is a model of plain language writing for minor appellants.

VB8-04337 – Ethiopia June 2019

Provides an example of point first writing in addressing the issue of adequate state protection against racial discrimination in Italy.

MB7-10167 – Georgia March 2019

Provides an example of point first writing and a concise model for confirming an RPD decision when the RAD agrees with the RPD's credibility findings and conduct during the hearing.

TB7-12465 – Somalia March 2019

Provides an example of point first writing in assessing the viability of IFA in Hargeisa for a person facing persecution due to his status as a member of a minority clan in Somalia.

Refugee Appeal Division specific issues

New evidence

TB8-11669 – Slovakia September 2022 

This decision addresses the relevance of information submitted by the Minister on appeal indicating that the Appellant had been charged with criminal offences in Canada. The RAD found that this evidence had no bearing on the assessment of the credibility of the Appellant's claim and did not support a finding that the Appellant had hidden criminal activity outside Canada.

TB7-15889 – Nigeria March 2021 

Provides an example of when new evidence submitted to the RAD is found inadmissible due to credibility concerns including: its timing; the implausibility of its source and circumstances; and an inconsistency between the new evidence and previous testimony.

TB8-19888 – Pakistan March 2021 

Demonstrates in a well-organized manner how to address proposed new evidence, including evidence submitted by way of a Rule 29 application. This decision explains why certain pieces of proposed new evidence did not meet any of the s. 110(4) criteria, weighs all relevant factors in subrule 29(4), and explains why certain pieces of evidence met all of the Singh/Raza factors.

TB8-04091 – Nigeria August 2020 

Evaluates the admissibility of new evidence and the requirement to conduct a hearing under s.110(6) of the IRPA. It is a case involving bisexuality in Nigeria, in which the new evidence was crucial to the appeal. After holding a hearing on the new evidence, the RAD member substituted a positive decision.

New issues on appeal

MB8-15738 – Haiti October 2020 

Provides an example of the RAD exercising its jurisdiction to determine an appeal on grounds other than those considered by the RPD. The RAD found that the determinative issue was not credibility, as the RPD had found, but whether the appellant faced a prospective risk if returned to Haiti.

Oral hearings

VC0-01435 – Syria September 2021 

Assesses the Refugee Appeal Division's jurisdiction to conduct an oral hearing in relation to credibility issues arising from evidence provided by the Minister on appeal.

TB8-04091 – Nigeria August 2020 

Evaluates the admissibility of new evidence and the requirement to conduct a hearing under s.110(6) of the IRPA. It is a case involving bisexuality in Nigeria, in which the new evidence was crucial to the appeal. After holding a hearing on the new evidence, the RAD member substituted a positive decision.

Applications to re-open an appeal

TB8-24987 – Colombia August 2020 

Outlines the legal principles associated with applications to reopen and applies them to the facts of the case.

Refugee Appeal Division directions to the Refugee Protection Division

VB8-01757 – Jordan June 2019

This decision considers the principle of stare decisis (following legal precedent) and the jurisdiction of the RAD to give directions to the RPD in its reasons for decision.

Religious belief

VB9-05280 – Iran October 2020 

Provides a thorough analysis of the appellant's genuineness of faith in an appeal involving Christianity in Iran. The RAD articulates the problems inherent with imposing a rigid test of religious belief and practice upon an Appellant.

TB7-12633 – China December 2019

This decision models a practical approach to assessing credibility based on knowledge of the Falun Gong practice in China. The appellant was found not to be credible due to her inability to demonstrate a level of knowledge comparable to her alleged practice.

Section 97 claims

MB8-25922 – Haiti November 2021 

Provides an example of section 97 analysis, particularly for the risk in Haiti as a victim of general criminality and as a returnee from abroad. The decision also examines the residual gender profile.

TB9-03925 – El Salvador November 2021 

Outlines the legal framework to be applied in assessing generalized risk in section 97 claims. It is a case involving fear of criminal gangs in El Salvador. The RAD dismissed the Appeal, finding that the Appellant's risk was generalized.

VB8-06039 – Libya November 2021 

Provides an example of a dismissal of a Minister's appeal after concluding the appellant faces a personal risk that is not the same as the one generally faced by others. The case involves a threat of kidnapping by militias in Libya. The RAD accurately sets out the conjunctive test under s. 97(1)(b) (see para. 30) and the jurisprudence on the evolution of the risk (see paras. 32).

MB8-13243 – Haiti December 2019

This decision models a practical approach to assessing generalized risk versus personalized risk in a case involving criminality in Haiti. The decision focuses on credibility and the sufficiency of objective evidence.

Statelessness

MC1-07673 – Palestine September 2022 

This decision assesses the issue of statelessness and the question of whether, for the purposes of refugee determination, the Palestinian territories can be considered a “country of former habitual residence.”

Weighing evidence

TB9-28106 – Algeria March 2021 

Addresses the authenticity of documents (paras 8-22) and the use of evidence in National Documentation Package (NDP) (paras 23-30).