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Tag: Refugee

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RAD File No VB9-03573 

Date: 20 November 2019 

Court: Immigration and Refugee Board of Canada, Refugee Appeal Decision 

Citation: [2019] RADD No 2229 

Summary by: Madison Bruno 

Short summary  

The Refugee Protection Division (RPD) rejected a claim for refugee protection because it found an Internal Flight Alternative (IFA), Port Harcourt, within Nigeria. The Appellant claimed that the RPD erred in its IFA test because the alternate location was unsafe and unreasonable. The Refugee Appeal Board dismissed the appeal but accepted evidence regarding effects of climate change in Nigeria. 

Link to original judgement  

Click here to open the case in PDF format

Weight of decision  

The federal Immigration and Refugee Protection Act (IRPA) gives the Immigration and Refugee Board of Canada jurisdiction to hear and decide cases on immigration/refugee matters. Their decisions are persuasive but not binding precedent and are subject to judicial review at the Federal Court. 

Key facts 

Appellant alleged he was attacked by Fulani Herdsmen in 2016, following several altercations over their cattle drinking from his fishponds. He claimed that he was hospitalized for 14 months. Appellant fled Nigeria in 2018, travelled through the U.S., then arrived in Canada to seek refugee protection.  

Canada’s Refugee Protection Division rejected appellant’s initial application for asylum, prompting an appeal to the Refugee Appeal Board. 

Summary of holding 

The Refugee Appeal Board utilized a two-part legal test for assessing whether appellant had a reasonable Internal Flight Alternative (IFA): 

“First, the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted, and/or no danger of torture, risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA.” (¶ 51) 

“Second, conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there.” (¶ 52) 

“Once an IFA has been identified, the Appellant is responsible for demonstrating that the IFA is unsafe or unreasonable.” (¶ 53) 

The Appeal Board then gave a summary of the documentary evidence regarding Fulani Herdsmen used by the Refugee Protection Division (RPD) in its original decision: 

“The NDP [National Documentation Package] states that climate change and insecurity in Nigeria’s northern region have triggered a southward migration of Fulani Herdsmen, resulting in conflict between local farmers and the Herdsmen as they search for land to graze their cattle. The conflicts occur primarily in Nigeria’s Middle Belt, including the states of Adamawa, Benue, Kogi, Kwara, Nasarawa, Niger, Plateau, Taraba, and the Federal Capital Territory.” (¶ 55) 

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AV (Nepal) [2017] NZIPT 801125, 26 

Date: 22 September 2017 

Court: New Zealand Immigration and Protection Tribunal 

Citation(s): [2017] NZIPT 801125, 26 

Short summary 

Appellants, suffering from PTSD, claimed that they could not return to Nepal due to fear induced by the deadly 2015 earthquake. The Tribunal denied them leave to remain as they had not suffered from persecution resulting from actions of the State and did not meet the definition of a refugee under the 1951 Refugee Convention.  

Summary by: Lucas Robinson  

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

The New Zealand Immigration and Protection Tribunal (NZPT) is an independent judicial body that was established under § 127 of the Immigration Act 2009. The Tribunal has jurisdiction to hear appeals against immigration and refugee decisions made by State bodies. As appealing to the High Court can only be made on a point of law, the NZPT decisions carry substantial weight in domestic law. 

Key facts 

Appellants, a married Nepalese couple, appealed the decision made by a refugee and protection officer that they were not to be granted refugee status in New Zealand. They argued that following the April 2015 earthquake in Nepal, they had been diagnosed with post-traumatic stress disorder (PTSD) and feared the prospect of returning to Kathmandu. The earthquake rendered their home unhabitable and for a period of time they slept in tents. However, although they partly repaired their home, evidence was offered that they often slept on the veranda due to the fear of aftershocks. Appellants argued that they both felt much safer residing in New Zealand where their son and his family had been granted residence status and had purchased a home. Additionally, the Appellants’ General Practitioner gave evidence indicating that the wife did in fact suffer from PTSD and that both of the Appellants suffered from physical injury on account of the earthquake, which had left them in chronic pain for some time.  

Summary of holding 

The Tribunal determined that the relevant tests were set out in the Immigration Act 2009 under § 194(1)(c). Namely, it must be found that appellants are refugees under the 1951 Refugee Convention, protected persons under the 1984 Convention Against Torture, or protected persons under the 1966 International Covenant on Civil and Political Rights (ICCPR) to receive asylum.  

In regard to the 1951 Refugee Convention, it was necessary for the Appellants to show, as per Article 1A(2), that “owing to a well-founded fear of being persecuted,” they were unable to return to Nepal on account of their “race, religion, nationality, or membership of a particular social or political group”.  The Tribunal followed the view in DS (Iran) [2016] NZIPT 800788, that “being persecuted” required serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection. Additionally, a fear of being persecuted is established as well-founded when there isa real, as opposed to a remote or speculative, chance of it occurring (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). The Appellants acknowledged that they did not fear the Nepalese state itself, but rather the fear of future earthquakes and the prospect of returning to Kathmandu without the support of their children. In light of this, the Tribunal cited AF (Kribati) [2013] NZIPT 800413, a case that set out whilst natural disasters could involve human rights issues, the definition set out in the 1951 Refugee Convention still had to be satisfied.  

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AF (Tuvalu) [2015] NZIPT 800859

Date: 20 October 2015

Court: New Zealand Immigration and Protection Tribunal

Citation: [2015] NZIPT 800859

Short summary

This case was heard before the New Zealand Immigration and Protection Tribunal. It is an appeal against the decision taken by a refugee and protection officer to deny refugee status or protected person status to the appellant, a 25-year-old man of Tuvaluan nationality who had been served with a deportation order. The appellant based his appeal on the claim that he had a real chance of being persecuted if returned to his country of nationality in relation to an infringement of his right to work and of his right to safe drinking water. The appellant also claimed that his deportation to Tuvalu would be a violation of his daughters’ rights under the 1989 Convention on the Rights of the Child. The Tribunal dismissed the appeal on the ground that the appellant could reasonably access clean drinking water and reasonably attempt to gain employment in Tuvalu.

Summary by: Lucas Robinson

Link to original judgement

Click here to open the case in PDF format

Weight of decision

The New Zealand Immigration and Protection Tribunal is an independent judicial body and has jurisdiction to hear appeals against deportations, refugee claims, and other immigration decisions. A decision from the New Zealand Immigration and Protection Tribunal can be reviewed by the High Court only if an appeal is made on a point of law. In that sense, the New Zealand Immigration and Protection Tribunal’s decisions carry substantial weight in New Zealand domestic law.

Key facts

The appellant was a citizen of Tuvalu, who was 25 years old at the time of the hearing. In 2003, he moved to New Zealand with his mother. This event forced him to drop out of school in Tuvalu. He has been living in New Zealand since then and never went back to school.  In 2008, he married a New Zealand citizen and they had two daughters together. Between 2008 and 2014, the appellant was convicted of multiple offences/crimes in New Zealand. As a result, in July 2014, the appellant was served with a deportation order. In December 2014, the appellant submitted a claim to be recognised as a refugee or as a protected person. A refugee and protection officer denied his claim. This case is the appeal against the aforementioned refusal.

The appellant appealed the decision on three grounds. First, the appellant fears returning to Tuvalu because of the lack of employment opportunities. Indeed, he fears that the government of Tuvalu will discriminate against him due to his criminal convictions and lack of formal education, therefore violating his right to work. Second, the appellant claims that, if returned to his country of nationality, he would not be able to exercise his right to access safe drinking water due to the effects of climate change. Third, the appellant claims that his deportation to Tuvalu would violate his daughters’ rights under the 1989 Convention on the Rights of the Child.

Previous instances

In July 2014, the appellant was served with a deportation order as a result of his convictions for crimes he committed between 2008 and 2014. His attempt to get this deportation order revoked was unsuccessful. Facing deportation, the appellant submitted an application to be recognised as a refugee or protected person. A refugee and protection officer declined to grant the appellant’s application.

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Refugee Appeal No. 76374

Date: 28 October 2009

Court: New Zealand Refugee Status Appeals Authority

Citation: Refugee Appeal No. 76374

Short summary  

A refugee applicant from Burma claimed to have a well-founded fear of persecution by her home government because of her involvement with groups adverse to the government’s interests and aiding cyclone victims. She was granted asylum in part due to her disaster relief assistance activity. 

Summary by: Lucas Robinson

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision holds moderate weight in New Zealand with respect to cases in which an individual is persecuted for their political opinion as expressed via assistance following a climate disaster.  

Key facts 

The applicant was a woman from Rangoon/Yangon, Burma/Myanmar with children. She was a self-employed businesswoman until she went to New Zealand. While in her home country, the applicant became part of the pro-democracy movement. She helped Buddhist monks communicate about the situation in Burma during the late 90s into the 2000s. She would arrange the meetings and help the monks get to the location of the meetings. The applicant was also tasked with exchanging money on the black market multiple times.  

When Burma was hit by Tropical Cyclone Nargis in 2008, the applicant had to get more money from the black market to buy food rations and other disaster relief materials. The applicant assisted in distributing the disaster relief materials. 

The applicant moved to New Zealand in late 2008 and began speaking with family through videochat. While in New Zealand, associates of the applicant were arrested and given harsh sentences for their political activities. Also, while taking to her sister on video-chat, the applicant learned the government was arresting people who helped with disaster relief and that the government was inquiring about her.  

Previous instances

 The applicant was denied refugee status at her initial hearing because of a lack of well-founded fear of persecution. 

Summary of holding

The main issues presented were: Does the appellant-applicant have a well-founded fear of being persecuted? And, if so, is that fear recognized under the Refugee Convention?  

The appeals court found that the applicant had a well-founded fear of persecution because of the documented unjust punishments of other members of groups she belonged to. In particular, the government’s demonstrated interest in the applicant, and the likelihood she would suffer an unjust arrest and punishment if returned home, constituted this well-founded fear. Further, the court found that the applicant’s political opinion – one ground for relief under the Convention – encompassed her actions in aiding disaster relief efforts. As such, the applicant was granted refugee status.

By failing to take all these factors into consideration, the Prefect disregarded Provision 11 in its decision to deport Mr. Sheel.  

Potential takeaways for future climate migration litigation 

  • This case involves an individual who feared return to her home because of state persecution of individuals who assisted in disaster relief. It therefore shows how a government’s response, or lack thereof, to a natural disaster can indirectly trigger a ground for refugee protection. 
  • The Burmese government actively rejected support from outside entities for disaster relief after the cyclone. The government then began to punish those who tried to provide disaster assistance themselves, opening the door for claims of political opinion persecution in the context of climate disasters.  
  • The appeals court did not address whether suffering from the cyclone itself, and the government’s lack of adequate response, might constitute persecution, but, as in other cases in the region, the answer likely would have been no under the Refugee Convention.  
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