TC0-04940

RAD File / Dossier de la SAR : TC0-04940 TC0-04941 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 18, 2020 Date de la décision Panel Anderson, Colin Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION AND DECISION [1] The following reasons explain why I am dismissing the appeals of XXXX XXXX (the first minor Appellant) and XXXX XXXX (the second minor Appellant). The Appellants have appealed the Refugee Protection Division's (RPD) January 17, 2020 decision that rejected their claims for refugee protection. The Appellants have asked that I substitute the RPD's decision with my own finding that the Appellants are Convention refugees or persons in need of protection, or that I return the files to the RPD for redetermination. I find that the RPD was correct to determine that the Appellants are not Convention refugees and that they are not persons in need of protection. BACKGROUND [2] The Appellants are both accompanied minors. Their mother, XXXX XXXX, is their designated representative in these appeals. [3] The Appellants had their claims jointly heard at the RPD along with other members of their family. The Appellants' family members were citizens of Pakistan alone. The Appellants were born in the United States of America (USA) and are citizens of the USA. The Appellants also have the right to assert Pakistani citizenship through their parents. Thus, Pakistan was a country of reference for the Appellants' family members, while both Pakistan and the USA are countries of reference for the Appellants. [4] The RPD accepted the claims of the Appellants' family members, and they are not parties to these appeals. However, the RPD found that the Appellants' claims failed because they had not rebutted the presumption of adequate state protection available to them in the USA. [5] The Appellants have argued on appeal that the RPD erred by failing to consider the evidence on the record in a constructive light, and by failing to recognize that no child can survive without their parent's support. The Appellants have further pointed out that one of the Appellants is autistic and "is in constant need of mother's supervision and support to carry out normal activities of life." The Appellants have made a further request regarding health insurance under the Interim Federal Health Program. PRELIMINARY MATTERS No new evidence and no oral hearing [6] The Appellants have not requested the admission of any new evidence with respect to this appeal and have not sought an oral hearing at the Refugee Appeal Division (RAD). As no new evidence was admitted in this appeal, no oral hearing is permitted pursuant to IRPA s. 110(6). The role of the RAD [7] I have reviewed the entirety of the written record and have listened to the audio recording of the RPD hearing. The RPD had no meaningful advantage over me in assessing the credibility of oral testimony. I have therefore undertaken a review of the correctness of the RPD decision throughout. State protection as the determinative issue [8] As I will explain below, I find that the RPD was correct to determine that the Appellants would receive adequate state protection should they return to the USA. State protection is determinative of these appeals. ANALYSIS Family unification is not relevant to refugee protection [9] While I am highly sympathetic to the Appellants' circumstances, I am unable to consider family unification arguments persuasive in the refugee determination context. The Federal Court, on many occasions, has found that there is no concept of family unity incorporated into refugee protection.1 State protection is available in the USA [10] States are presumed to be capable of protecting their citizens. This presumption can be rebutted with clear and convincing evidence of the state's inability to protect its citizens. [11] The Appellants have argued that they would have no way to support themselves independently should they return to the USA. They argue that no child can survive on his/her own without parent's support and guidance. They finally argue that the second minor Appellant is in constant need of his mother's supervision and support to carry out normal activities of life, such as eating, going to the washroom, and changing clothes. [12] The Appellants have not pointed to any evidence that they would be unable to access the appropriate social or medical services necessary for their safety and health in the USA. The USA is a highly democratic country with well-established social and medical services. For this reason, I am unable to find that adequate state protection would not be forthcoming should the Appellants return to the USA. The humanitarian purpose of IRPA [13] The Appellants have argued that "the main purpose of IRPA is to protect the public interest, the Canadian society and to provide a relief to people like the Appellants." I agree and note that IRPA is a broad statute that covers much more than just refugee protection. [14] Indeed, the Appellants have acknowledged that IRPA may provide them with the relief they seek in that they "are already a part of [their mother's] Permanent Resident application." [15] To this I would add that IRPA includes other provisions, such as humanitarian and compassionate considerations, and would encourage the Appellants to explore that avenue of relief. I am unable to comment on the validity of a possible humanitarian and compassionate considerations application as that is not the role of the RAD. The RAD has no role in health insurance [16] The Appellants have included in their memorandum of appeal a request that their coverage under the Interim Federal Health Program be extended "until or unless the appeal is being reconsidered or PR application is approved." [17] Unfortunately, the RAD has no role in determining requests such as these. I would encourage the Appellants to seek counsel to ensure that this request is made to the appropriate decision-maker. CONCLUSION [18] The RPD was correct to find that the Appellants have not rebutted the presumption of adequate state protection available to them in the USA. [19] The Appellants have not shown that they face a serious possibility of persecution on a Convention ground, or, on a balance of probabilities, a risk to life, risk of cruel and unusual treatment or punishment, or a danger of torture should they return to the USA. [20] The Appellants are not Convention refugees and are not persons in need of protection. The appeal is dismissed pursuant to IRPA s. 111(1)(a). (signed) "COLIN ANDERSON" Anderson, Colin December 18, 2020 Date 1 Chavez Carrillo v. Canada (Citizenship and Immigration), 2012 FC 1228 (CanLII). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (January, 2020) Disponible en français 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 RAD File No. / N° de dossier de la SAR : TC0-04940 TC0-04941