VB9-06177

RAD File / Dossier de la SAR : VB9-06177 VB9-06178 / VB9-06179 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision January 9, 2020 Date de la décision Panel Paula Faber Tribunal Counsel for the persons who are the subject of the appeal Karen Klouth Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX for

XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] These are my reasons for dismissing the appeals of XXXX XXXX XXXX XXXX XXXX (Principal Appellant) and her two sons, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (Minor Appellants), (collectively the Appellants). The Principal Appellant is a citizen of Ecuador. The Minor Appellants are citizens of Venezuela and Ecuador. [2] The Refugee Protection Division (RPD) accepted the refugee claim of the Principal Appellant's husband, finding that he had established a claim against his only country of citizenship, Venezuela, based on his anti-government political activities. [3] The Appellants appeal the RPD decision rejecting their claims for refugee protection. The RPD found that their claims against Ecuador had not been established and therefore did not satisfy the requirements of sections 96 or 97 of the Immigration and Refugee Protection Act (IRPA).1 [4] The Appellants argue that the RPD has erred in its decision by ignoring Chapter VI of the United Nations High Commissioner for Refugees (UNHCR) Handbook2 regarding the preservation of the family unit and section 3(2)(f) of the IRPA regarding family reunification. [5] The Appellants request that the Refugee Appeal Division (RAD) allow the appeal and find that they are Convention3 refugees or persons in need of protection.

DETERMINATION [6] For the reasons that follow, I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the IRPA.

ANALYSIS [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness.4 [8] My role is to look at all the evidence and decide if the RPD made the correct decision.5 [9] I have conducted an independent assessment of the evidence and arguments,5 and I do not find that the RPD erred in determining that the Appellants are neither Convention refugees nor persons in need of protection. [10] Appellants must establish their refugee claims against each of their countries of nationality. [11] To expand upon this, when Appellants have citizenship in more than one country, they must show that they are Convention refugees with respect to all such countries. Section 96(a) of the IRPA specifically provides: 96 A Convention refugee is a person who... (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries; [12] Refugee Claimants must therefore demonstrate that they have a well-founded fear of persecution in all countries of nationality before they can be conferred refugee protection in Canada. Consequently, the RPD or RAD is not required to consider the fear of persecution or availability of protection in the second country of citizenship, once it has been determined that the Claimant does not have a well-founded fear of persecution in the

first. Citizenship in Ecuador is established [13] The Principal Appellant's citizenship in Ecuador is established through a copy of her valid Ecuador passport.6 [14] The Principal Appellant was born in Ecuador and lived there for 28 years7 before moving to Venezuela, where she obtained permanent resident status. According to information in her Basis of Claim (BOC) form, her parents and siblings currently live in Quito, Ecuador. [15] The Minor Appellants are citizens of Ecuador by descent. It is acknowledged in their Notice of Appeal from an RPD decision document that they are citizens of both Venezuela and Ecuador. [16] Objective evidence before me in the Ecuador National Documentation Package (NDP) provides information on Ecuadorian Citizenship law and the acquisition of citizenship. Article 7 of the constitution includes three categories of Ecuadorians at birth, including: "Persons born abroad to a mother or father born in Ecuador and their descendants up to the third degree of consanguinity."8 [17] It is not in dispute that the Appellants are citizens of Ecuador. As citizens they are required to establish their claims against that country. In their BOC forms, they have based their claims solely on the allegations of their husband/father. He is a citizen of Venezuela only and has alleged no fear of persecution or harm in Ecuador. [18] The Principal Appellant testified that

she fears returning to Ecuador because of some political activities in which she was involved in 2014. She returned to Ecuador twice after 2014, and did not have any problems with the authorities. She explained that her mother received threats up until 2017, but there is no evidence advanced to corroborate this. [19] The RPD asked Counsel for the Appellants at the refugee hearing if they would be pursuing the claim made against Ecuador in order to allow Counsel the opportunity to question the Appellants and make submissions. Counsel indicated that they would not be further advancing the claim against Ecuador. [20] I find that the evidence does not establish that the Appellants face a serious possibility of persecution or risk to life if they return to Ecuador. The RPD decision is not unfair [21] The Appellants argue that the RPD ignored Chapter VI of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status regarding the preservation of the Claimants' family unit. I do not agree. Although the UNHCR Handbook may serve as general guidance on refugee law principles, it is the IRPA that governs the law relating to refugees in Canada. In order for a refugee claim to be accepted, Appellants must establish that they meet all of the elements of the definition as described in the Act.8 [22] The Appellants argue that the RPD purposely disregarded section 3(2)(f) of the

IRPA regarding facilitating family reunification, I disagree. I acknowledge that IRPA has objectives of family reunification and of protecting refugees. However, the family reunification objective is met specifically through immigration. I find that in this case, the RPD considered the objectives of the IRPA relating to refugees, including the first objective, which is: 3(2)(a) To recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. In addition, it has been well established in Canadian jurisprudence that the concept of "family unity" is not recognized under refugee law.9 [23] In this case, the RPD has determined, and I agree, that the Appellants do not face persecution or a risk to their lives in Ecuador, and therefore, they do not need refugee protection. [24] The Appellants argue that since the head of the family (the Principal Appellant's husband) meets the criteria of the refugee definition, his dependents are to be granted refugee status according to the principle of family unity. That is not law that guides the RPD or the RAD, nor is it what is indicated in the UNHCR Handbook in the Inclusion Clauses section of the handbook in Chapter II addressing dual or multiple nationality: Dual or multiple nationality [25] Article 1 A (2), paragraph 2, of the 1951 Convention:10 a. In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national. b.

106. This clause, which is largely self-explanatory, is intended to exclude from refugee status all persons with dual or multiple nationality who can avail themselves of the protection of at least one of the countries of which they are nationals. Whenever available, national protection takes precedence over international protection. Objective evidence - Ecuador [26] Even though the Appellants have not advanced allegations that they will face a serious possibility of persecution or face a risk to life if they return to Ecuador, I have still considered the objective evidence with respect to that country to determine if the requirements of sections 96 and 97(1) of the IRPA can be satisfied. I find that they are not satisfied by the objective country documents. [27] According to the 2018 Human Rights Report for Ecuador: Ecuador is a constitutional, multiparty republic with an elected president and unicameral legislature. In April 2017 voters elected President Lenin Moreno from the ruling party Alianza PAIS (Proud and Sovereign Fatherland) and chose members of the National Assembly in elections that were generally free and fair, marking a successful democratic transfer of power after the two-term presidency of Rafael Correa. Civilian authorities maintained effective control over the security forces. Although the report does describe human rights challenges including: government

corruption, reports of torture and abuse by police officers and prison guards, and violence against women, the report indicates that: The government took steps to investigate and prosecute officials who committed human rights abuses, as it engaged in efforts to strengthen democratic governance and promote respect for human rights.11 [28] Having considered the objective evidence with respect to Ecuador, I find that the Appellants' claim against that country has not been established and therefore must fail.

CONCLUSION [29] I have reviewed all of the evidence and arguments before me and have undertaken my own analysis to find that the RPD did not err when it found that the Appellants are not Convention refugees or persons in need of protection. [30] For the reasons stated above, I find that there is no serious possibility that the Appellants would be persecuted in Ecuador or, on a balance of probabilities, that they would be at risk of torture, a threat to life or a risk of cruel and unusual treatment or punishment in Ecuador. [31] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act. (signed) "Paula Faber" Paula Faber January 9, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, available at: https://www.refworld.org/docid/4f33c8d92.html. 3 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 4 Canada

(Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 6 Exhibit RPD-1, RPD Record, at p. 156 to p. 172. 7 Exhibit RPD-1, RPD Record, Minister Delegate Review at p. 96 to p. 100. 8 National Documentation Package (NDP) for Ecuador (29 Mach 2019), at Item 3.3. 9 Nazari v. Canada (Citizenship and Immigration), 2017 FC 561. 10 UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, available at: https://www.refworld.org/docid/4f33c8d92.html. 11 NDP for Ecuador (29 March 2019), at Item 2.1. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-06177 VB9-06178 / VB9-06179 RAD.25.02 (April 04, 2019) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français