TB9-34368

RAD File / Dossier de la SAR : TB9-34368 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 25, 2021 Date de la décision Panel David Morris Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. [2] The Appellant, XXXX XXXX, a.k.a. XXXX XXXX XXXX, is a citizen of both Bangladesh and Italy. [3] The Appellant's original Basis of Claim Form (BOC) was received by the Immigration and Refugee Board of Canada (IRB) on 11 December 2017. In it he alleged he is a citizen of Bangladesh named XXXX XXXX and that he fears persecution at the hands of the Awami League (AL) and Hefazat-e-Islam. On 3 July 2019, the Appellant submitted a completely new BOC narrative. In it, he disclosed that his name is actually XXXX XXXX XXXX and that he is a citizen of Italy as well as Bangladesh. The Appellant withdrew the allegations contained in the first BOC narrative. [4] The Appellant's current allegations are as follows. [5] The Appellant immigrated to Italy in 1995, returning to Bangladesh to marry in 1996. Thereafter he lived in Italy, returning to Bangladesh each year to visit his spouse and their children. In 2010 he learned his spouse was having an affair with a man named XXXX. He also learned that the money he had sent her to invest in property in Dhaka had been used by his spouse to buy property in XXXX name. The Appellant demanded his money be returned but was threatened by XXXX. [6] In XXXX 2012, while he was in Bangladesh, the Appellant was beaten by AL goons who had been sent by XXXX. He made a complaint to the police, but nothing happened. The Appellant returned to Italy. [7] The Appellant returned to Bangladesh in XXXX 2014 to speak to a lawyer about bringing a case against XXXX. In XXXX 2014 AL goons came to the Appellant's home to attack him and he fled to XXXX. A few days later, AL goons abducted the Appellant at gunpoint. The goons beat him and threatened to kill him. He was put on a videocall with XXXX who again threatened to kill the Appellant. The Appellant had to pay ransom in return for his freedom. [8] In XXXX 2014, the Appellant returned to Italy where he XXXX XXXX XXXX XXXX XXXX in XXXX. On XXXX XXXX 2015, two men, one a mafia don, the other, a Bangladeshi man connected to XXXX, came into the Appellant's shop, attacked him and took all his money. They warned him not to go to the police. [9] The Appellant moved to Rome in XXXX 2016 where he started XXXX XXXX XXXX XXXX. In XXXX 2016 he was confronted in a pub and beaten and threatened by the same Mafioso who had assaulted him in XXXX. [10] The Appellant fled to Canada on XXXX XXXX 2016. He claimed refugee protection in December 2017. Refugee Protection Division determination [11] The Refugee Protection Division (RPD) found that the Appellant was a citizen of Italy and, pursuant to section 98 of the Immigration and Refugee Protection Act (IRPA),1 was excluded from seeking refugee protection by operation of Article 1E of the Refugee Convention Nonetheless, the RPD considered his claim with regard to Italy. [12] The RPD found that the Appellant lacked credibility with regard to the incidents in XXXX and in Rome. The RPD found the evidence failed to establish any connection between the agents of harm and the mafia. It found that state protection was available to the Appellant in Italy. Appellant's submissions [13] Although lacking in clarity, the Appellant's submissions appear to contest the RPD's findings with respect to Article 1E of the Refugee Convention. The Appellant argues the RPD erred in concluding the Appellant had status in Italy comparable to that of a "foreign national." He submits the Appellant faces persecution or harm in both Bangladesh and Italy. He submits that the RPD's finding of no nexus with respect to his claim in Bangladesh was perfunctory and fails to consider the applicability of section 97 of IRPA. NEW EVIDENCE The new evidence presented by the Appellant is rejected [14] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [15] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [16] The Appellant submits two documents with his Record which he asks be admitted as new evidence: i. A letter from a friend, dated XXXX XXXX 2019 (the letter);4 and ii. An article, dated XXXX XXXX 2016 (the article).5 [17] Both documents predate the rejection of the Appellant's claim. The Appellant must therefore demonstrate that they were not reasonably available or could not reasonably have been expected in the circumstances to have been submitted prior to the RPD's decision. [18] The Appellant has made no submissions on how the new evidence meets these requirements. It is not for the Refugee Appeal Division (RAD) to make arguments for the Appellant. I find they do not meet the requirements of the legislation. They will not be admitted. [19] As no new evidence has been admitted, I have no jurisdiction to hold an oral hearing. The request for an oral hearing is therefore denied. ANALYSIS [20] My role is to look at all the evidence and decide if the RPD made the correct decision.6 Article 1E of the Refugee Convention does not apply-the Appellant is not excluded [21] The RPD erred in determining that the Appellant was excluded from refugee protection. [22] This is because I find, on a balance of probabilities, the Appellant has citizenship in two countries: Italy and Bangladesh.7 Article 1E of the Refugee Convention does not apply to dual citizens. Rather, it applies to persons who are citizens of one country but have taken up residence in a second country where they are recognized as having rights and obligations attached to the possession of nationality of that country. I find that, as a dual citizen, Article 1E does not apply to the Appellant and that he is therefore not excluded from seeking refugee protection. As a citizen of both Bangladesh and Italy, the Appellant must establish his claim for protection against both of these countries [23] IRPA provides that, "A Convention refugee is a person who ... (a) is outside each of their countries of nationality and is unable or, by reason of ... [their] fear, unwilling to avail themself of the protection of each of those countries".8 A person in need of protection, "is a person in Canada whose removal to their country or countries of nationality ... would subject them personally (a) to a danger ... of torture ... or (b) to a risk to their life or ... of cruel and unusual treatment or punishment".9 [24] Applying these provisions to the Appellant's case, it is clear that he must establish that he faces a serious possibility of persecution or, on a balance of probabilities, that he faces a danger of torture or risk to life or risk of cruel and unusual treatment or punishment in both of his countries of citizenship in order for his claim to be successful. That is, he must establish his claim against both Bangladesh and Italy. If it is determined that he is not a Convention refugee or person in need of protection in one of his countries of citizenship, there is no need to consider the Appellant's claim against the other country.10 [25] Although the RPD erred in finding the Appellant was excluded, it nonetheless addressed the Appellant's claim against Italy. While the Appellant is correct in submitting that the RPD did not address the substance of the Appellant's claim against Bangladesh, an assessment of the claim against Bangladesh would only be necessary if the claim was also established against Italy. I have therefore considered first whether the RPD was correct in its determination with respect to the Appellant's claim against Italy. [26] I have determined that although the RPD did err with respect to exclusion, the Appellant has not shown that he faces a serious possibility of persecution or that, on a balance of probabilities, he faces a danger of torture or risk to his life or risk of cruel and unusual treatment or punishment in Italy. The Appellant's claim against Italy is not credible [27] The RPD found that the Appellant's testimony with respect to the incident in XXXX was not credible. Although the Appellant asserts the RPD erred in its credibility assessment, he does not make any submissions as to how the RPD erred. [28] The Appellant testified that he had reported this attack to the police, received medical treatment and talked to a lawyer about the incident. When asked if he had the police or medical reports or a letter from his lawyer, the Appellant said he did but they had all been lost. The Appellant further stated that the police had arrested the assailants but they had been released after three days. Counsel asked the Appellant why he had not mentioned the arrest in his BOC. The Appellant answered that he did not remember to write it.11 [29] The Appellant was asked if he had reported the incident in Rome to the police. He said he had. He was asked why this was not in his BOC. He again said he had forgotten. The RPD asked if the attacker who was a member of the mafia was named in any newspapers. The Appellant said that he had heard this person's name in the media and in a Rome newspaper. The Appellant was asked if he had any of these articles. He said he did not.12 [30] I find the Appellant's evidence with respect to the events which are alleged to have occurred in Italy evolved over time from his BOC narrative and throughout his testimony. The RPD did not err in finding the Appellant's testimony lacked credibility. [31] The RPD rejected the Appellant's assertion that his assailants were connected to the mafia as he provided no evidence to corroborate this allegation. Given the credibility issues already raised, I find that the RPD did not err in requiring corroboration. I find the Appellant has failed to establish, on a balance of probabilities, any connection between the alleged agents of persecution and the mafia. The Appellant has not rebutted the presumption of state protection [32] Even if I accepted the Appellant's allegations, which I do not, I find there would be adequate state protection for the Appellant in Italy. [33] The RPD found that Italy is a parliamentary republic with a functioning security force to uphold the law. It therefore found the Appellant failed to rebut the presumption of adequate state protection in Italy. [34] On appeal, the Appellant makes no submission on the issue of state protection. [35] In his post-hearing submissions to the RPD, the Appellant argues that his attempts to report the XXXX and Rome incidents to the police and the persecutor's ties to the mafia show that protection would not be forthcoming.13 However, I have determined that neither of these incidents nor the mafia connection have been established on a balance of probabilities. I therefore find the Appellant has not rebutted the presumption of state protection. [36] Having found, on a balance of probabilities, that the Appellant failed to establish the core elements upon which his claim is based and that adequate state protection exists, I find that his claim should be rejected, whether considered pursuant to section 96 or 97 of IRPA. Not necessary to consider the Appellant's allegations with respect to Bangladesh [37] It follows that the Appellant has the protection of Italy-which is one of his countries of citizenship. There is therefore no need to consider the Appellant's claim with respect to Bangladesh.14 CONCLUSION [38] I dismiss the appeal and, for different reasons, confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of IRPA. (signed) David Morris David Morris 25 March 2021 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 2 IRPA, subsection 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 Exhibit P-2, Appellant's Record, at pp. 58-62. 5 Exhibit P-2, Appellant's Record, at pp. 63-71. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 7 A copy of the Appellant's Italian passport is at Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 102-106. A copy of his Bangladeshi passport is at Exhibit RPD-1, RPD Record, Exhibit 11, at pp. 214-238. 8 IRPA, section 96. 9 IRPA, subsection 97(1). 10 Harris v. Canada (Minister of Citizenship and Immigration), 1997 CanLII 5567; Martinez Cabrales v. Canada (Citizenship and Immigration), 2019 FC 1178, at para. 53. 11 Transcript of 1 November 2019 RPD Hearing, at p. 13, lines 41-47. 12 Transcript of 1 November 2019 RPD Hearing, at p. 17, lines 29-50. 13 Exhibit RPD-1, RPD Record, Exhibit 12, at pp. 270-271. 14 Harris v. Canada (Minister of Citizenship and Immigration), 1997 CanLII 5567; Martinez Cabrales v. Canada (Citizenship and Immigration), 2019 FC 1178, at para. 53. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-34368 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