TB9-01974

RAD File / Dossier de la SAR : TB9-01974 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 5 October 2020 Date de la décision Panel Sybil Thompson Tribunal Counsel for the person who is the subject of the appeal Daniel Kingwell 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] The Appellant, XXXX XXXX, a citizen of Afghanistan, is appealing a decision of the Refugee Protection Division (RPD) dated November 26, 2018, refusing his claim for refugee protection. The RPD determined the Appellant was excluded from refugee protection under section 98 of the Immigration and Refugee Protection Act (IRPA), in accordance with article 1E of the 1951 United Nations' 1951 Convention relating to the status of refugees, as he had status in Germany status substantially similar to that of nationals of that country. [2] For the following reasons, I dismiss this appeal. The Appellant is excluded under article 1E of the Convention as he has status in Germany substantially similar to that of its nationals. BACKGROUND OF APPEAL The Appellant's' claim, the RPD's decision, and the Appellant's arguments before the Refugee Appeal Division (RAD) [3] In his first Basis of Claim (BOC) form, the Appellant claimed he faced a serious forward looking risk of persecution in Afghanistan on the grounds of his Shia Muslim identity and a risk under section 97(1) of the IRPA because he was perceived to be a wealthy business owner by anti-government elements (AGEs) in that country. [4] The Minister of Immigration, Refugees and Citizenship (IRCC) then intervened in the claim and submitted the Appellant should be excluded under article 1E as he had permanent resident status in Germany. [5] In an amended BOC form and narrative, the Appellant acknowledged he had earlier failed to disclose to the RPD that from 1997 onward he lived in Germany with his family and was granted permanent residency in that country. He submitted that in XXXX 2017, in order to be able to marry his spouse who lived in Canada, he paid a smuggler to transport him from Germany to Canada via Afghanistan using a fraudulently obtained Indian passport and claimed refugee status. He submitted that he was not able to return to Germany because he had been absent from that country for more than a year, which meant that his permanent resident status there had expired by operation of law. [6] The RPD found the Appellant was excluded under article 1E of the Convention as his loss of status had been voluntary. The RPD applied the test set out in the Federal Court of Appeal's decision in Zeng.1 The RPD found the Minister's evidence had established the Appellant did have status in Germany at the time he initiated his refugee claim, and that the status conferred rights similar to those enjoyed by German nationals (including the right to work, study, access health care and social services). [7] The RPD noted the Appellant's submission that a November 2018 court judgment indicated his German residence permit document had expired, but found the Appellant had failed to exercise a right of appeal in respect of that judgment that could have allowed him to renew his German permanent residence permit. The RPD found the Appellant "should be excluded under Article 1E".2 [8] Before the RAD, the Appellant submits the RPD erred in finding he was excluded under article 1E. He submits he never had the rights and privileges of a German national at the time of the RPD's decision; or alternatively, that he did but lost them for compelling reasons. He also submits that he meets the test to be found either a Convention refugee or a person in need of protection. REQUEST FOR AN ORAL HEARING UNDER S. 110(6) OF IRPA [9] The Appellant has not asked for any documents to be admitted as new evidence in this appeal. He has, however, asked me to convene an oral hearing in accordance with subsection 110(6) of the IRPA "if the Refugee Appeal Division impugns the Appellant's credibility and/or if contrary sworn testimony is admitted by the Division from another party which should be the subject of cross-examination by the Appellant's counsel."3 [10] According to subsections 110(3), (4), and (6) of the IRPA, the RAD must not hold a hearing in an appeal unless there is new evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim.4 [11] As no new evidence has been admitted in this appeal, I have no discretion to convene an oral hearing in accordance with subsection 110(6) of the IRPA. ANALYSIS [12] My role is to look at all the evidence and decide if the RPD made the correct decision.5 I will apply the correctness standard of review after independently assessing the record in order to determine whether the RPD erred. I will only show deference to the RPD's credibility assessment and/or to its weighing of the oral evidence in situations where the RPD enjoys a particular advantage. If I find the RPD had a particular advantage, my reasons will explain why. [13] My determination is based on my independent assessment of the evidence before me. This includes: the records prepared by the RPD and the Appellant; transcripts and an audio recording of both sittings of the Appellant's RPD hearings on 7 and 26 November, 2018; and documents contained in the current compilation of the National Documentation Package (NDP) for Afghanistan. Article 1E Exclusion The test for exclusion under article 1E [14] The three-part test for exclusion under article 1E is stated in the Federal Court of Appeal's reasons for judgment in Zeng: [28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts.6 [15] Under the first part of the test, the decision-maker "must ask whether the claimant has status substantially similar to that of nationals of the country in question. It is here that the decision maker must examine whether the claimant enjoys substantially the same rights as a national of the country referred to in Article 1E of the Convention."7 The rights must include the right to return to the country of residence, the right to work freely without restrictions, the right to study, and full access to social services in the country of residence. [16] If the answer to the first question is no, the decision-maker then proceeds to the second part of the test, and "must ask whether the claimant had lost resident status or could have acquired it by reasonable means, but did not do so. If the answer is no, the analysis ends, since the applicant is not excluded under Article 1E."8 [17] If the answer to the second question is yes, the decision-maker then proceeds to the third part of the test and considers and balances various factors including but not limited to (a) the reasons for the Appellants' loss of status; (b) whether the Appellants would be able to return to the country of residence; (c) whether they would be at risk in their country of origin; (d) Canada's international obligations, if any; and (e) any other relevant factors. "The assessment of these factors is made at the third stage of the test established in Zeng and must be done when the claimant has lost their status or has not taken steps to acquire a status similar to nationals of the country in question."9 The RPD's article 1E exclusion determination [18] In my independent assessment, the RPD's oral reasons show it considered the evidence and submissions of both parties and correctly applied the test in Zeng. Specifically, the RPD applied the first step of the Zeng test and found the Appellant had status in Germany similar to that of nationals of that country and excluded him on that basis. [19] In applying the first part of the Zeng test, the RPD accepted the Minister's submission that the Appellant did have permanent resident status in Germany as he lived there for almost twenty years without incident.10 In my independent assessment, this finding is supported by documents disclosed by the Minister, including a copy of an application for a Canadian temporary resident visa the applicant made to the Canadian consulate in Vienna in the name of XXXX XXXX in December 2016. This person was identified as the Appellant using biometric data gathered and retained by IRCC11, while the visa application notes indicate the Appellant had a German residency document that expired on October 20, 2015.12 [20] The RPD appears to then have contested the Appellant's submission that he lost his permanent resident status by operation of law after he left Germany in XXXX 2017. The Appellant relied on a document he disclosed: an administrative decision dated November 13, 2018 issued by the Department of Foreigner Affairs in Hamburg which required the Appellant "to leave the area of application" of Germany's Residence Act of July 30, 2004, as his "permanent residence permit [...] [had] expired by law."13 [21] The administrative decision states: As of August 08, 2017, you were reported to be unknown. In the letter of 26, 2018, your Authorized Representative stated that you left the country for Canada in XXXX 2017 and applied for asylum there. Since you had left the Federal Republic of Germany for more than 6 months, your Authorized Representative assumed that you had waived your permanent residence permit in accordance with § 51 cl. 1 No. 7 of [the] Residence Act and requested a corresponding certificate. [...] According to §51 cl. 1 No. 6 of [the] Residence Act a residence permit is expired if the foreigner leaves the country for reasons that are not temporary. As described above, your Authorized Representative indicated that you have already left for Canada and have applied for asylum there. It is stated that you have left the Federal Republic of Germany for a non-temporary reason, hence your residence permit has expired acc. to § 51 cl. 1 No. 6 of [the] Residence Act. Furthermore, the residence permit expires acc. to § 51 cl. 1 No. 7 of [the] Residence Act if the foreigner has left and has not returned within six months or a longer period determined by the immigration authority. As stated in the letter from your Authorized Representative. in XXXX 2017 you have left the country for Canada and have not yet returned. A longer period has not been determined by the local authority, so your residence permit has also expired according to § 51 cl. 1 No. 7 of [the] Residence Act. As a result, it is determined the permanent residence permit that has been issued to you in accordance with § 26 cl. 4 of [the] Residence Act on July 05, 2012 and transferred on January 23, 2017 has expired by law. According to § 50 cl. 1 of [the] Residence Act, you are obliged to leave the Federal Republic of Germany.14 [22] The RPD did not accept the Appellant's submission that his loss of status in Germany by operation of law was involuntary, or that he was unable to return to that country. The RPD noted the Appellant "[had] the legal remedy to file against the decision made by German authorities"15 concerning his permanent residence permit and that he "[had] not taken into account the factors that [he] could have renewed [his] status."16 It found the Appellant "voluntarily let [his status in Germany] lapse"17 and on that basis found that he was excluded under article 1E as he had status in Germany. [23] My independent assessment under the first part of the Zeng test takes into account the Federal Court of Appeal's reasons for judgment in Majebi, which provide that a claimant's status for the purposes of an article 1E exclusion assessment should be considered as of the date of their last RPD hearing.18 The Appellant's submission that he never had the rights and privileges of a German national at any time, including during his RPD hearing [24] The Appellant submits that he never had the rights and privileges of a German national because his permanent residency status "was in fact temporary in nature," as it was valid only until October 202119; and that his permit was conditional as he was "required to meet requirements of s. 9 of the Residence Act" in order to retain it and his "use of a false passport to travel might give rise to 'public safety' or 'public order' concerns."20 [25] The Appellant left Germany in XXXX 2017 and entered Canada on XXXX XXXX, 2017.21 When he initiated his refugee claim in Canada on November 28, 2017 his German permanent resident permit was still valid, as he had left Germany less than six months prior. [26] The Appellant's inability to return was the product of his failure to act to renew his permit, which flowed from his indifference about maintaining his permanent resident status in Germany. This interpretation is supported by the following exchange between the Appellant and the RPD panel in the first sitting of the hearing on November 7, 2020: RPD MEMBER: So am I to assume that you intentionally had your permanent residency in Germany expire? CLAIMANT: In fact, I was not aware of this process, but now if it happened, it happened. But this was a risk I took, maybe this could happen. RPD MEMBER: What do you mean, risk you took? CLAIMANT: Like, the risk of coming illegally and to be able to enter Canada. RPD MEMBER: When were you aware of - you said you were not aware - when did you get - when were you aware of that you'll lose your status in Germany? CLAIMANT: Two or three months ago when I spoke to my lawyer in Germany and he said if somebody is away for six month or one year, they will lose his status.22 [27] Thus, while the Appellant's German permanent residency permit was expired as of November 26, 2018 - the date of the RPD's determination of his claim - it was because the Appellant did not take steps to renew the document, which was valid at the time he claimed refugee status. Had he done so, the Appellant would have been able to return to that country. [28] The fact the Appellant's German permanent residency permit was expired by the time of the first sitting of the Appellant's RPD hearing did not prevent the RPD from finding he was excluded under article 1E. First, while the permit itself was expired, the card itself indicated that the Appellant's status had no expiry, meaning he could have taken the necessary action to have his permit renewed reinstated, had he chosen to inform himself. [29] Thus, at the time of his RPD hearing, the Appellant also bore the onus of showing he would be denied re-entry to Germany, permanent residency, or the opportunity to renew his permanent residency permit. I find that he instead allowed his permanent residency permit to expire while he was absent from Germany, without taking steps to inform himself of the possible impact on his permanent residency status of leaving Germany without advising the authorities or staying outside that country for longer than six months. [30] Although the RPD did not make any explicit findings about whether the Appellant's permit was conditional, I have independently assessed the evidence and I find that while there may have been conditions attached to the validity of the Appellant's permit, this does not support a finding that his failure to meet some of those conditions would result in the cancellation of his permanent residency status. [31] First, while the Appellant's German residence permit states the card can be used until October 6, 2021, there is no indication that the Appellant's legal status as a permanent resident is dependent on the validity of the permit document itself, which appears to indicate that his permanent resident status has no expiry date - something which both the RPD panel23 and the Minister's counsel24 remarked upon during the hearing. [32] Second, although section 9 of Germany's Residence Act, which the Appellant points to as proof of the conditional nature of his permanent resident status25, appears to set out conditions for obtaining and maintaining one's permit document, the fact the Appellant failed to meet some of the conditions needed to maintain the validity of his residence permit does not mean he needed to meet those conditions in order to maintain his legal status as a permanent resident of Germany. [33] Moreover, subsection (1) of section 9 of the German Residence Act states specifically that "[t]he permanent settlement permit is a residence title which is not limited in time".26 This provision in the Residence Act refers to the residence permit as "Niederlassungserlaubnis", the same word used to describe the Appellant's permanent residency status on his residency permit.27 This word is translated into the English-language phrase "NO EXPIRY" on the official Public Services and Procurement Canada translation of the Appellant's residence permit. [34] In my independent assessment, the foregoing evidence strongly supports a finding that the Appellant's status as a permanent resident of Germany would not expire simply because his permit had expired, and I so find. [35] I turn now to the Appellant's submission that the administrative decision, legal opinion, and a plain reading of Germany's Residence Act support a finding that he did not have the rights and privileges of a German national at the time of the RPD's determination. Having independently assessed the evidence, I reject this submission. [36] First, the administrative decision of November 13, 2018 appears to concern itself solely with the validity of the Appellant's residency permit rather than his legal status as a permanent resident of Germany. The decision states the Appellant's "permanent residence permit [...] has expired by law"28 but does not address his legal status as a permanent resident of Germany. A straightforward reading of the decision shows it is a definitive statement concerning the Appellant's validity of the Appellant's permit only. [37] Second, my reading of the legal opinion dated October 30, 2018 from the Appellant's lawyer in Germany is that it, too, concerns itself with the validity of his permanent residence permit and the likelihood that he would be able to re-enter Germany without a valid permit: As I have already communicated in my e-mail of 11.10.2018, your residence permit in Germany has already expired. According to § 51 cl. 1 of the Residence Act (AufenthG), the residence permit of a foreigner residing legally in Germany ceases if the foreigner has left and has not returned within six months or a longer period determined by the Immigration Authority (§ 51 c. 1 of the Residence Act (AufenthG)). The expiry of the residence permit is independent of whether you had a permanent residence permit or a temporary residence permit. ln addition, it is very problematic because you have left the Federal Republic of Germany illegally and, therefore, a criminal case may be initiated against you. The return might only be possible if you had left the country legally. It doesn't also matter that you have lived in Germany for more than 15 years. I strongly advise you to stay in Canada.29 [38] The same is true of the Appellant's earlier legal opinion dated October 11, 2018: Regarding your concern in Germany, I have to inform you that your residence permit has already expired. According to §51 section 1 of the Residence Act, the residence permit of a foreigner legal residing in Germany expires, for example, when - the foreigner emigrates for a reason that is by its very nature not temporary (§51 section 1, No. 6); - the foreigner has left and has not re-entered within six months of a longer period determined by the foreigners' authority (§51 section 1, No. 7). [...]30 [39] I find, contrary to the Appellant's submission31, that the legal opinions from his German lawyer do not confirm, or even address the Appellant's legal status as a German permanent resident, only the validity of his permanent resident permit. [40] Third, the Appellant relies on a "plain reading" of "points 6 and 7 of s. 51"32 of Germany's Residence Act to argue that he lost his permanent resident status because his reason for leaving Germany was not temporary, and because he failed to re-enter Germany's territory within six months of departing that country without advising the authorities. On this basis he submits he has no grounds to appeal the administrative decision of November 13, 2018 confirming the expiry of his German residency permit.33 [41] My reading of section 51 (1) of Germany's Residence Act is that it concerns the expiry of the residency permit, rather than the Appellant's legal status as a permanent resident of Germany. Section 51(1) states "[t]he residence title shall expire in the following cases".34 According to a website of Germany's Federal Office for Migration and Refugees (BAMF) disclosed by the Minister, the phrase "residence title" appears to refer to the "electronic residence title (e-residence title) with a certified chip [...] introduced on 1 September 2011" in Germany - in other words, to the permanent resident permit in card format.35 This interpretation is another webpage printout from Germany's BAMF disclosed by the Minister, which states "[t]he electronic residence title is in ID-1 format [...]" and goes on to describe the security features of the residence permit.36 [42] While the administrative decision of November 13, 2018 is clear that the Appellant must leave Germany by December 15, 2018 because of the deemed expiry of his permit, it does not indicate that his legal status as a permanent resident of Germany is no longer valid. [43] When I read section 51 (1) of Germany's Residence Act in light of this information, I find that the section in question refers to the Appellant's permanent resident permit - specifically the document - rather than to his legal status as a permanent resident of Germany. [44] It is for this reason I reject the Appellant's submission that he never had the rights and privileges of a German national and that his "'permanent resident' status was in fact temporary in nature"37. The evidence on the record simply does not support such a finding. [45] Fourth, the Appellant submits38 with reference to several Federal Court judgments, paragraph 145 of the December 2011 reissue of the UN High Commissioner for Refugees' 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 (the UNHCR RSD Handbook)39, and professor James Hathaway's monograph The Law of Refugee Status, that the rights of a national include the unfettered right to return to return to the country of 1E nationality. Since the November 2018 Hamburg court judgment states he cannot re-enter Germany, the Appellant had no right to return there and thus no rights similar to those of a German national that would make him excludable under article 1E of the Convention. [46] I note the UNHCR RSD Handbook states that there is "no precise definition of 'rights and obligations' that would constitute a reason for exclusion" under article 1E. I interpret this to mean that states where would-be refugee claimants "have the rights and obligations which are attached to the possession of the nationality of that country" have a fairly wide margin of appreciation to determine the terms and degree of a national's protection against deportation and expulsion from the state - or in Professor Hathaway's terms, to prescribe reasonable laws and regulations specifying how "the rights of entry and of freedom [from] removal or expulsion" are "conferred and respected." [47] As I have stated at paragraph 36 of these reasons, I believe the November 2018 Hamburg court judgment concerns itself solely with the validity of the Appellant's residency permit rather than his legal status as a permanent resident of Germany. The judgment clarifies that the Appellant's permit document expired because he failed to comply with conditions required to maintain its validity. [48] I find that had the Appellant done so, his right to be safe from removal or expulsion from Germany would have been recognized by German authorities as having been validly conferred and would have been respected more or less automatically, as his residency permit document would not have been deemed expired by operation of law. [49] I also reject the Appellant's submission that the November 2013 Hamburg court judgment states that he cannot return to Germany. Rather, the judgment states only that he is "obliged to leave Germany"40 because of the expiry of his residency permit document. [50] Moreover the judgment - like the Appellant's "Border Crossing Certificate"41 -distinguishes between the Appellant's "legal obligation to leave [Germany] within the specified period" and the prospect of "deportation to [his] country of origin" or to "another country" in the event that he remains in Germany beyond the date of December 15, 2018 specified in the judgment.42 The Border Crossing Certificate only discusses the issue of a bar on the Appellant's re-entry to Germany in the context of his deportation from Germany.43 If anything, the Appellant's departure from Germany in XXXX 2017 is in the nature of a voluntary departure that the German authorities were notified of post-facto, particularly since the Appellant "plan[ned] the time and circumstances" of his own departure from Germany. [51] In my independent, the Appellant's submission that the November 2013 Hamburg court judgment bars him from returning to Germany is not based on an accurate understanding of the judgment and the Border Crossing Certificate. As there is no evidence the Appellant has "receive[d] a re-entry ban through deportation" I find that, per the discussion of voluntary departure in his Border Crossing Certificate, the Appellant would "be able to return to Germany and the European Union, subject to the entry requirements that apply to [him]."44 Analysis of the Zeng factors: the Appellant's submission that he had the rights and privileges of a German national but lost them for compelling reasons [52] The Appellant submits, alternatively, that an analysis of the factors in Zeng favours a finding that he is not excluded under article 1E of the Convention. As part of this submission he asserts he had the rights and privileges of a German national "but lost them for compelling reasons."45 He submits that he lost his permanent resident status in Germany because he needed to come to Canada to marry his spouse out of "love and desperation", which was a compelling reason as his spouse was at risk of being forced to marry a third party against her will, in violation of her human rights. He submits further that the RPD "is deemed to have accepted this fact" as it "[declined] to hear corroborating testimony from witnesses" on this point.46 [53] Concerning the other Zeng factors, the Appellant: relies on his earlier submissions to argue that he cannot return to Germany; submits that he faces a serious risk of persecution in Afghanistan "as a Shia Muslim, and due to his association with the West"; and that in light of both of these factors "[i]t is therefore consistent with Canada's obligations under the Refugee Convention to accord him refugee status".47 [54] First, for the reasons stated at paragraphs 49 to 51 above, I reject the Appellant's submission that he cannot return to Germany. [55] Second, I reject his submission that his desire to marry his spouse XXXX XXXX was a compelling reason for his departure from Germany. I have considered the Appellant's testimony that even though he and his spouse discussed marrying one another as early as 2013, he never considered having his spouse join him in Germany as his spouse would not have wanted her family to face the stigma flowing from any decision to act without their explicit permission.48 I have also considered his testimony that his spouse's family was entertaining marriage proposals from other suitors for her and he feared that her parents would compel her to marry.49 [56] In the first case, however, he could have planned to return to Germany after marrying her in Canada, thus maintaining the validity of his residency permit. He testified that he never applied to immigrate to Canada, even though this would have been an option either before or after marrying his spouse that would not have impeded his return to Germany, while formalizing his relationship with his spouse. [57] Moreover, in the event his spouse had faced significant pressure from her parents to marry someone other than the Appellant, pressure amounting to coercion, she would presumably have been able to seek assistance from public safety authorities in Canada such as the police to avoid being compelled to marry against her will. [58] In my independent assessment neither of the Appellant's explanations is a compelling reason for the Appellant to have remained outside of Germany and cause his residency permit document to expire by operation of law after departing the country in XXXX 2017 to marry his spouse XXXX. While the Appellant's reasons for leaving Germany and remaining outside of Germany many have been subjectively compelling, the evidence does not support a finding that he has lost his status. In any event, even if he had lost his permanent resident status in Germany, in my independent assessment the lost of status would have been the result of voluntary action entirely within the Appellant's control. [59] Third, concerning Canada's obligations at international law, I find that in this case the Appellant would be able to return to Germany, as in my independent assessment the evidence does not support a finding that his permanent resident status in that country has been cancelled - rather, the evidence indicates it is only his residence permit document that has expired, and as he has not been deported from Germany the evidence does not support a finding that he faces a ban on re-entry to that country. [60] Fourth, because of this the Appellant does not face the prospect of removal from Canada to a country - Afghanistan - where he alleges he faces a serious forward-looking risk of persecution, without the benefit of any risk assessment. As I have found the Appellant retains permanent resident status in Germany that is substantially similar to that of nationals of that country as of the date of his RPD hearing, any further analysis of the Appellant's alleged risk in Afghanistan is foreclosed. I will therefore not deal with paragraphs 81 through 117 of the Appellant's written submissions concerning his alleged risk of persecution in Afghanistan. Summary [61] The evidence on record points to a finding that the Appellant has permanent resident status in Germany that is substantially similar to the status of nationals of that country, and that he has not lost that status. CONCLUSION [62] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) S. Thompson S. Thompson 5 October 2020 Date 1 Canada (Citizenship and Immigration) v Zeng, 2010 FCA 118 [Zeng]. 2 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 4-6. 3 Appellant's Record, p. 3. 4 See Malambu v Canada (Citizenship and Immigration), 2015 FC 763 at paras. 28-36 and 59. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 Zeng at para. 28. 7 Celestin v Canada (Citizenship and Immigration), 2020 FC 97 at para. 34 (Pamel J) [Celestin]. 8 Celestin at para. 39. 9 Celestin at para. 41. 10 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5 (line 17-18). 11 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 72 (paras. 3-5), 78. 12 Exhibit RPD-1, RPD Record, Exhibit 5, p. 81. 13 Exhibit RPD-1, RPD Record, Exhibit 12, p. 249. 14 Exhibit RPD-1, RPD Record, Exhibit 12, p. 249. 15 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5 (lines 22-23). 16 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5 (line 36). 17 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 5 (line 36) to 6 (line 5). 18 Majebi v. Canada (Citizenship and Immigration), 2016 FCA 274 at para. 7. 19 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 21 at para. 60. 20 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 23 at paras. 67-68. 21 Exhibit RPD-1, RPD Record, Exhibit 2, p. 16. 22 Transcript of hearing in RPD file no. TB7-23247 on 7 November 2017 at p. 33 (lines 13-27) (emphasis added). 23 Transcript of hearing in RPD file no. TB7-23247 on November 7, 2018, p. 34 (lines 5-6). 24 Transcript of hearing in RPD file no. TB7-23247 on November 26, 2018, p. 12 (lines 20-23). 25 Exhibit P-2, Appellant's Record, Appellant's memorandum, p. 19. 26 RPD Record, Exhibit 6, p. 116 ("Section 9 - Permanent settlement permit"). See also RPD Record, p. 130. 27 RPD Record, Exhibit 6, p. 99 (front of Appellant's permanent residence permit). 28 Exhibit RPD-1, RPD Record, Exhibit 12, p. 248. 29 Exhibit RPD-1, RPD Record, Exhibit 12, p. 240 (emphasis added). 30 Exhibit RPD-1, RPD Record, Exhibit 9, p. 180 (emphasis added). 31 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 18-19 at para. 44. 32 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 19 at para. 45. 33 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 19 at paras. 46-48. 34 Exhibit RPD-1, RPD Record, Exhibit 9, p. 183. 35 Exhibit RPD-1, RPD Record, Exhibit 6, p. 122 ("The electronic residence permit has a contactless chip inside the card on which biometric characteristics (photo and two fingerprints) supplementary conditions (requirements) and personal data are stored. In addition, the chip can store electronic proof of identity.") 36 Exhibit RPD-1, RPD Record, Exhibit 6, p. 125. 37 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 21 at para. 60. 38 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 19-21 at paras. 49-57. 39 I have considered the Appellant's submission in light of the relevant paragraphs on article 1E exclusion in the more recent February 2019 reissue of the UNHCR RSD Handbook, which reproduces paragraph 145 . Please see UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV. 4, available at: https://www.refworld.org/docid/5cb474b27.html [accessed 10 September 2020]. 40 Exhibit RPD-1, RPD Record, Exhibit 12, p. 249. 41 Exhibit RPD-1, RPD Record, Exhibit 12, pp. 254-260. 42 Exhibit RPD-1, RPD Record, Exhibit 12, p. 249. 43 Exhibit RPD-1, RPD Record, Exhibit 12, p. 257. 44 Exhibit RPD-1, RPD Record, Exhibit 12, p. 257. 45 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 17 at para. 40. 46 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 23-24 at paras. 70-72. 47 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 24-25 at paras. 73-78. 48 Transcript of hearing in RPD file no. TB7-23247 on November 7, 2018 at pp. 35 (lines 33-50) to 41 (lines 6-44), inclusive. 49 Transcript of hearing in RPD file no. TB7-23247 on November 7, 2018 at pp. 42 (lines 21-53) to 44 (lines 5-16), inclusive. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-01974 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