TB8-11910

RAD File / Dossier de la SAR : TB8-11910 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 12, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal Jeffrey L Goldman 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 [1] The Appellant and his wife XXXX XXXX are both Albanian nationals. In XXXX 2012, the Appellant's wife secretly married the Appellant, despite being engaged to the Appellant's cousin. She moved to Italy, where the Appellant has residency status. They claim that in XXXX 2013, the Appellant's cousin-who also lived in Italy-learned of the marriage and, in XXXX 2014, threatened to kill the Appellant and his wife. They claim that the cousin's family, who are wealthy, influential, and involved with the drug trade, declared a blood feud against the Appellant and his wife. [2] The Appellant flew from Italy to Canada on a fraudulent Italian passport on XXXX XXXX, 2014. The Appellant's wife travelled to New York, arriving on XXXX XXXX, 2014. She entered Canada on XXXX XXXX, 2014. [3] The Appellant and his wife made a joint claim for refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). In an April 27, 2018 decision, the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (Board) rejected both claims. Both claimants-the Appellant and his wife-submitted a Notice of Appeal, which was received by the Board on May 16, 2018. In a decision dated June 13, 2018, the Refugee Appeal Division (RAD) dismissed the Appellant's wife's appeal due to a lack of jurisdiction pursuant to paragraph 110(2)(d) of the IRPA, i.e. because she came to Canada from a Safe Third Party. Consequently, this appeal only addresses the Appellant's claim.1 [4] For the reasons that follow I deny this appeal. REQUEST FOR THE ADMISSION OF NEW EVIDENCE [5] The Appellant requests the admission of the following: 1) a certification from the XXXX XXXX XXXX of Albania dated XXXX XXXX XXXX 2018 and 2) an article from Gazeta Koha Jone, dated December 27, 2017. [6] Subsection 110(4) of the IRPA limits the admission of evidence in an appeal before the RAD to evidence that: 1) arose after the RPD's rejection of the claim; 2) was not reasonably available at the time of the RPD's rejection of the claim; or 3) an appellant could not reasonably have been expected in the circumstances to have presented at the time of the RPD's rejection of the claim. If I find that the new evidence meets the requirements of subsection 110(4), I must then consider whether the evidence meets the factors elaborated by the Federal Court of Appeal in the Singh case, i.e. newness, credibility, and relevance.2 Only then am I able to admit the new evidence. 1. Certification from the Peace Reconciliation Missionaries [7] The XXXX XXXX, 2018 "Certification" from the XXXX XXXX XXXX of Albania states that i) the organization was "recently" contacted to verify the situation for the Appellant and his wife regarding conflicts in their families; ii) it learned on XXXX XXXX XXXX 2018 that the Appellant's cousin's family has vowed to kill the Appellant and his wife (but that they are not hostile towards the Appellant's wife's family); and iii) it learned on XXXX XXXX, 2018 that the Appellant's wife's family plans to murder her because they feel humiliated by her actions. [8] The Appellant argues that this evidence, which involved inquiries that took place after the April 27, 2018 rejection of his claim by the RPD, was not available. [9] If, by stating that the evidence was not available, the Appellant is arguing that it "arose" after the rejection of their claim, then this must be rejected. The relevant date in determining whether new evidence arose after the rejection of a claim is not when the document was dated or when the inquiries resulting in the new information were made. What is relevant is whether the information that was contained in the document arose after the rejection of the claim. Here there is no indication that the facts set out in the Certification arose after April 27, 2018. To the contrary, it is clear from the Appellant's evidence that the situation elaborated in the Certification came into existence long before the inquiry was undertaken or the letter was written by the XXXX XXXX XXXX of Albania. The existence of the blood feud between the Appellant and his cousin's family's view was previously certified by a XXXX XXXX XXXX 2018 Certification from the XXXX XXXX XXXX of Albania, which was before the RPD.3 [10] If, by stating that the evidence was not available, the Appellant is arguing that it was either not reasonably available or that he could not reasonably have been expected in the circumstances to have presented it the time their claim was rejected, this too must be rejected. He does not provide any reasoning to support either claim.4 [11] The Certification is inadmissible. 2. December 27, 2017 article [12] The article lists 79 officers in the Albanian police force who were reportedly involved in drug crime. [13] The Appellant states that the article, which, he claims, rebuts the presumption of state protection in Albania, was not available to him because it was "recently published" in an Albanian newspaper. [14] If the Appellant is arguing that the article was not reasonably available to him because it was published in an Albanian newspaper or because it was published a mere four months before the RPD rejected their claim on April 27, 2018, neither argument is persuasive. He does not provide any evidence to show that he took steps to find this article or other similar information regarding corruption in the Albanian police force before the rejection of the claim-and if so, why those steps were unsuccessful. The Appellant, who was represented, would have known that the question of state protection was one that the RPD would have likely considered. [15] The article is inadmissible. STANDARD OF REVIEW [16] In my review of the RPD's decision, I will apply a standard of correctness.5 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.6 ANALYSIS [17] The RPD made the following findings: a) the Appellant was excluded from refugee protection by virtue of Article 1E of the United Nations Convention Relating to the Status of Refugees,7 because he has a status that grants him unlimited stay and basic rights in Italy; b) in the alternative-i.e. if the RPD was incorrect in its exclusion finding at a)-the Appellant's claim to fear his cousin on the basis of a blood feud was not supported by the evidence; c) in the further alternative-i.e. if the RPD was incorrect in its findings at a) and b)-the Appellant would not face persecution or other harm due to the existence of effective state protection in i) Albania and ii) Italy; d) the Appellant's wife's claim to fear the Appellant's cousin's family (on the basis of a blood feud) or her family (on the basis of their perception that she dishonoured them) was not supported by the evidence; e) in the alternative-if its finding at d) was incorrect-she would not face persecution or other harm should she return to Albania due to the existence of effective state protection there; and, f) subsection 108(4) of the IRPA (dealing with cessation of refugee status) was inapplicable. [18] The Appellant contests the RPD's findings at b) and c)(i)-i.e. he only contests the finding at c) as it pertains to state protection in Albania.8 [19] The Appellant does not contest the RPD's findings at a) or f) above; nor does he contest its finding at c)(ii), i.e. as finding c) pertains to Italy. I note that I have reviewed these findings and agree with them. Because these findings are uncontested, I will not set out my reasoning in this regard. CONCLUSION [20] Because I have agreed with the RPD's uncontested finding that the Appellant is excluded from protection under Article 1E (item a) above) because of his status in Italy and that there is adequate state protection in Italy (item c)(ii)) this disposes of his claim. I need not examine the RPD's alternative findings relating to the sufficiency of evidence as it pertains to his claim (item b) above) or relating to state protection in Albania (item c)(i) above). The Appellant is excluded from refugee protection pursuant to Article 1E. The appeal is dismissed. (signed) James Sloan James Sloan August 12, 2020 Date 1 I note that the Appellant's memorandum, received by the Board on June 11, 2018, raises arguments relating both to the Appellant and his wife. I will, of course, only address those in relation to the Appellant. 2 Canada (Minister of Citizenship and Immigration) v. Singh, Parminder, 2016 FCA 96, at para 64. 3 Exhibit RPD-1, RPD Record, Exhibit 10, at p. 364. While the XXXX XXXX 2018 Certification did not address the hostility between the Appellant's wife and her family (or the lack of hostility between the Appellant's wife's family and the Appellant's cousin's family), there is no evidence that this information arose after the rejection of the claim on April 27, 2018-indeed, as noted, the evidence of the Appellants is that it arose well before then. 4 "It is now firmly established that an appellant's memorandum on appeal to the RAD must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also how that evidence relates to the appellant...". (Tiodunmo v. Canada (Citizenship and Immigration), 2019 FC 1489 at para. 15. See also Tejuoso v. Canada (Citizenship and Immigration), 2019 FC 903 at para. 29 and Pajarillo v. Canada (Citizenship and Immigration), 2019 FC 1654 at para. 18. 5 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 6 Ibid., at paras 69-74. See also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 7 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137. Section E of Article 1 of the Convention provides "This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of the country." Section 98 of the IRPA provides that a person referred to in section E of Article 1 of the Convention is not a Convention refugee or a person in need of protection. 8 As noted, the Appellant's memorandum, submitted before the RAD dismissed the Appellant's wife's appeal, makes arguments in relation to both the Appellant and his wife. While the Appellant's memorandum contests d) and e), I will not consider those arguments herein. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-11910 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