TB8-32913

RAD File / Dossier de la SAR : TB8-32913 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 22, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister J. Molloy Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. The Respondent, XXXX XXXX XXXX, is a citizen of the United States of America and of Nigeria. The Respondent is a minor whose claim was heard with that of his family. All of the claims were accepted based on risk in Nigeria. Summary of Basis of Claim (BOC) Narrative [2] No risk specific to the Respondent was advanced against the United States (U.S.). Reasons for Decision by the Refugee Protection Division (RPD) [3] The RPD noted that the Respondent is a citizen of the U.S. and that no claim had been made against that country. Nevertheless, it accepted the claim based on risk in Nigeria without assessing risk in the U.S. Grounds for the Appeal [4] The Appellant submits that the RPD erred for the following reasons: i) The Respondent is a citizen of the U.S. and of Nigeria who made a refuge claim with his parents and sister who are citizens of Nigeria. The RPD granted protection to all of the claimants, including the Respondent. Although the Minister does not challenge the decision with respect to the other family members, the RPD erred by assessing the Respondent's claim solely on the basis of risk in Nigeria and by ignoring his U.S. citizenship. Submissions by the Respondent [5] Although the Respondent filed a Notice of Intent to Respond, no submissions were received. Summary of Refugee Appeal Division (RAD) Decision [6] The Appellant is correct that the RPD erred by failing to assess risk against one of the Respondent's countries of citizenship. Given that no claim was advanced against the U.S., the RPD had no legal basis to grant refugee protection to the Respondent. My independent assessment of the Respondent's residual profile failed to identify any risk that qualifies for refugee protection. DECISION [7] The appeal is allowed. I substitute my own decision that the Respondent is neither a Convention refugee nor a person in need of protection. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [9] The Respondent is a XXXX XXXX XXXX old boy whose designated representative at the hearing was his father, XXXX XXXX XXXX. The family was represented by counsel before the RPD and the RAD until withdrawing on XXXX XXXX XXXX 2020. The RAD confirmed the designated representative on December 20, 2018. The Respondent's Notice of Intent to Respond was filed by counsel on December 21, 2018, and the form confirms the identity of the designated representative as well as contact information. The Minister provided documents to the designated representative at the address stated in the Notice of Intent to Respond, in addition to counsel. I am satisfied that the Respondent had a designated representative, and that the Respondent and counsel were properly served by the Minister. [10] The RPD confirmed at the beginning of the hearing that the Respondent is a citizen of both the U.S. and Nigeria.2 When the Member asked counsel if the Respondent was raising a claim against the U.S., the response was no. When asked about her position concerning the Respondent, counsel stated that he was proceeding under his father's claim against Nigeria because the facts are identical. [11] The RPD accepted all of the claims against Nigeria, including the Respondent's. The RPD stated at the beginning of its reasons for decision that the Respondent is a dual citizen of Nigeria and of the U.S. who made no claim against the U.S. However, the panel proceeded to grant refugee protection to the Respondent based on risk in Nigeria without assessing risk in the other country of citizenship, the U.S. [12] Both sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA)3 require that a risk assessment be conducted in reference to each country of nationality. The RPD erred by failing to do so. [13] The BOC narrative does not identify risk which is specific to the Respondent in the U.S. When asked, counsel told the RPD that no claim was being advanced against the U.S. Although the Respondent served a Notice of Intent to Respond, no submissions were made concerning this appeal. [14] The Respondent's residual profile is that of a minor who would return to the U.S. without his family. The Federal Court of Appeal has concluded that the execution of a deportation order that would separate children from his or her parents does not contravene Canadian law.4 In particular, the Court held that a child has no constitutional right never to be separated from its parents. Deportation of a foreign national is not imposed as a punishment and does not contravene section 12 of the Charter of Rights and Freedoms5 (the Charter) which protects against cruel and unusual treatment or punishment. In particular, it is not something that would outrage Canadian standards of decency.6 Having assessed the residual profile of the Respondent, I conclude that family separation has no nexus with the definition of a Convention refugee, and that it does not constitute cruel and unusual treatment or punishment. [15] Absent submissions with respect to risk in the U.S., my independent assessment has not identified any risks in the U.S. which meet the definitions in either section 96 or 97 of the IRPA. He has not made the case that he has a well-founded fear of persecution, or that he would likely be killed, tortured, or subject to cruel or unusual treatment or punishment in the U.S. CONCLUSION [16] The appeal is allowed. I substitute my own decision that the Respondent is neither a Convention refugee nor a person in need of protection. (signed) H. Shepherd H. Shepherd December 22, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Transcript of RPD Hearing, November 29, 2018, P. 5. 3 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 4 Langner v. Canada (Employment and Immigration) (1995) 184 N.R. 230 (C.A.) 232. 5 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 6 R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-32913 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français