TB4-09533

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 File No. / N° de dossier de la SAR : TB4-09533 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 21, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister & Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Joe Thipphawong Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration Canada (the Minister) appeals a decision of the Refugee Protection Division (RPD) accepting the claim for refugee protection of XXXX XXXX (the Respondent), a citizen of Syria. The Minister has not submitted new evidence in support of the appeal. The Minister is not requesting a hearing be held under section 110(6) of the Immigration and Refugee Protection Act (IRPA). The Minister is not relying on any documentary evidence referred to in section 110(3) of the IRPA. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111 (1)(b) of IRPA, the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that XXXX XXXXis neither a Convention refugee pursuant to s. 96 of the IRPA nor a person in need of protection pursuant to s. 97 of IRPA. Pursuant to ss. 107(2) of IRPA, and further that, the Respondent is excluded in accordance to section 98 of the IRPA and Article 1(e) of the United Nations 1951 Convention on the Status of Refugees (the Convention). This Appeal is allowed. BACKGROUND [3] The Respondent alleged before the RPD that she is a citizen of Syria who, at the time of her hearing held permanent resident status in Greece, where she was living with her husband and minor children, all of whom are Greek citizens. The Respondent alleged that she and her family faced persecution in Greece and as Kurds would face persecution should they return to Syria. [4] The RPD found that the Respondent should be excluded in accordance to Article 1(e) of the Convention and s. 98 of the IRPA; however, the panel decided to assess her risk should she return to Syria. The panel decided to find the Respondent to be a Convention refugee in spite of the panel's finding that the Respondent should be excluded in accordance to Article 1(e). ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [5] No new evidence was submitted by the Minister. [6] While IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal,1 such restrictions do not apply to the Minister (the Appellant here),2 nor do they apply to any evidence submitted by the Respondent in response to the Minister's evidence.3 As the Minister has not submitted new evidence, the Respondent must then comply with section 110(4) of the IRPA regarding any new evidence to be disclosed. [7] Section 171(a.3) of IRPA provides that the RAD may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. [8] The Minister does not wish to rely on new evidence. The Minister asks that the positive determination of the RPD be set aside and that the RAD substitute a determination that the Respondent is not a Convention refugee or a person in need of protection. Further, the Minister asks that the Respondent be excluded in accordance to Article 1(e) of the Convention. [9] The Respondent has disclosed evidence which she asks be entered as new evidence for the purpose of this appeal. The Respondent submits a document from the United Nations High Commissioner for Refugees (UNHCR),4 which speaks to the fact that people who are part of the Yazidi religious group are at risk in Syria.5 The Respondent submits a second document6 which appears to be an online news article about the closure of Syrian embassies, and in particular the Syrian embassy and consulates in the United States of America (US). [10] The basis of this appeal by the Minister is that the Respondent should have been excluded in accordance to Article 1(e) of the Convention. The appeal does not deal with the basis of claim. [11] The RAD must consider the proposed new evidence with section 110(5) of the IRPA in mind. Section 110(5) allows exceptions to the rules of 110(4) when the evidence presented is in response to evidence presented by the Minister. In this instance, the Minister has presented no new evidence. The Minister bases his appeal on an error in law. Consequently, the RAD finds that section 110(5) of IRPA does not apply, which means that new evidence must now be assessed in accordance to section 110(4) of IRPA. [12] Section 110(4) tells the RAD that the proposed evidence must be new, that is, it must have arisen after the rejection of the original claim, or it must not have been reasonably available or that the claimant/Respondent could not have reasonably been expected in the circumstances to have presented it at the time of the hearing. [13] The online news article was published on March 18, 2014, approximately six months before the decision was handed down. Section 110 (4) of the act speaks to allowing or disallowing new evidence. Specifically, the law reads: On appeal, the person who is subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The date of the rejection of this claim was September 10, 2014. The RAD finds that this document is not new and is therefore excluded. [14] The UNHCR document is dated after the hearing and after the decision of the IRB, however; it speaks to the possible risk to religious groups and others in Syria and does not address the issue of the appeal, which is exclusion in accordance to Article 1(e) of the Convention. Consequently, in this matter, it is neither relevant nor material to the appeal. Therefore, it will be excluded as it does not impact on the exclusion issue at hand. [15] As a result of the above analysis, there is no new evidence which will be allowed in this appeal. Submissions [16] The Minister submits that the RPD erred in law by finding the Respondent not excluded. The panel did not base the exclusion decision on the detailed analysis found in the RPD's Reasons for Decision but on the assumption that a failed claimant could be returned to her country of nationality by the decision of other agencies in Canada. The RPD further erred in law when it overstepped its mandate by issuing a decision it felt another agency should make. [17] The Minister submits that the RPD erred in fact when it ignored its own detailed analysis of the exclusion grounds. [18] The Minister asks that the RAD set aside the determination of the RPD and substitute a determination that the Respondent is excluded under Article 1(e) of the Convention. [19] The Respondent argues that the RPD erred in fact and refers the RAD to paragraph 33 of the RPD's Reasons for Decision. The Respondent suggests that the RAD ought to order a new hearing. [20] The Respondent cites Zeng7 at paragraph 28 where the Court of Appeal held that the date of the hearing was the relevant date for determination of 1(e) status. The Respondent goes on to suggest that the "date of the hearing" for the purposes of the appeal is the date of the RAD appeal determination. The Respondent appears to base that submission on the "new standard of review cases" and the "de novo nature of much of the appeal process." [21] Further, the Respondent is requesting an oral hearing in order that she may present her explanation of how the current situation prevents her from renewing her passport. [22] The Respondent further submits that if the "date of the hearing" is the date of the hearing before the RPD, then it was open to the RPD to consider the extraordinary situation that the administrative delay had caused. The Respondent submits that had the RPD reopened the hearing for just one minute, then the "Zeng date" would have been the date of the re-opened hearing. The Respondent submits that it was the extraordinary delay in making a decision which distinguishes this case from all others (the Respondent does not clarify what that extraordinary delay to which she refers, is). [23] The Respondent submits that, should the RAD be persuaded as to the risk to the Respondent, there has to be a hearing to assess the Zeng criteria. The Respondent requests that the RAD hold a hearing or that the RAD order that the RPD hold a new hearing, recalling in part there is new evidence and recalling in part that the RPD made an error in fact. [24] The Respondent requests that the appeal be dismissed and that the RAD confirm the decision of the RPD, or that the RAD order a new hearing at the RPD. [25] In regards to the Minister's submissions, the RAD has carefully reviewed the law in regards to exclusions in accordance to the Convention and the 1967 Protocols, in accordance to section 98 of the IRPA and in accordance with the Rules of the Immigration and Refugee Board. [26] The RAD notes that case law8 holds that the date of the hearing was the relevant date for determination of the Article 1(e) status. The hearing occurred on June 21, 2013, at which time the Respondent was and held permanent resident status in Greece. [27] The Respondent did not dispute that she enjoyed the rights substantially similar to that of Greek nationals. The Minister submits that at that point, Zeng says the analysis should end and the Respondent should have been excluded. The Respondent would like the RAD to consider the date of appeal as being the date of hearing which would effectively negate the exclusion, as the Respondent has allegedly lost her permanent residence status by this time. The RAD finds that the law is clear. It can be argued that, in accordance to Huruglica, the RAD is required to conduct an independent assessment of all of the evidence, which means the point in time that the RAD evaluates the Zeng test is the RAD appeal. However, while the RAD does conduct an independent assessment of the evidence, it does so in this situation in order to come to a conclusion as to whether the Zeng test was properly assessed at the time of the hearing. The RAD is assessing the evidence it has at the time of the appeal to conclude whether at the time of the RPD hearing the Zeng test was met. The "hearing" in question occurred on June 21, 2013, a time when the Respondent still enjoyed rights substantially similar to those of Greek nationals and was able to safely return to Greece where she had been living prior to coming to Canada. As the issue of exclusion was discussed at the hearing of June 21, 2013, the Respondent was aware of the issue and had ample opportunity prior to the release of the decision, to stabilize her status in Greece rather than allowing her permanent residency status to elapse. The Respondent could have accessed the Syrian consulate in the US in order to get her documents in order to maintain her status. She chose not to do that. The Syrian consulate in the US closed nine months later. In Zeng, Justice Carolyn Layden-Stevenson wrote: 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.9 In this particular case, the Appellant did have status in Greece at the date of the hearing (June 21, 2013) and could have worked harder to maintain that status while awaiting the decision of the RPD. [28] In Zeng, the Justice also says:10 At the hearing of this appeal, the submissions of the parties evolved toward common ground. The Minister and the respondents agreed on a number of basic propositions, each of which I consider to be unassailable. Those propositions are: ? the objectives set out in subsection 3(2) of the IRPA seek, among other things, to provide protection to those who require it and, at the same time, provide a fair and efficient program that maintains the integrity of the system; ? the purpose of Article 1E is to exclude persons who do not need protection; ? asylum shopping is incompatible with the surrogate dimension of international refugee protection; ? Canada must respect its obligations under international law; ? there may be circumstances where the loss of status in the third country is through no fault of a claimant in which case the claimant need not be excluded. [29] In this particular case, the Respondent held status in a third country which was able to provide her the protection she needed and might not get in Syria. She should have made the effort to maintain that status while awaiting the outcome of the hearing of June 21, 2013; she did not. [30] The RAD finds that the RPD did err in its assessment of this claim in regards to Zeng. RPD Findings [31] The RPD found11 that the Respondent's evidence of mistreatment in Greece was unreliable. [32] Further, the RPD states that the Respondent does not dispute that, on the day of the hearing, she was a permanent resident of Greece and she enjoyed the rights substantially similar to that of its nationals including the right to work, to enter or to leave the country, to obtain social services and property, and more.12 The RPD stated therein that, given this and the test of Zeng, the Respondent should be excluded. The RPD went on to state that there was more. [33] The RPD continues however, by stating that administrative errors resulted in the lengthy delay of the RPD decision being issued. By the time that the decision had been issued, the Respondent's passport had expired and so had her status in Greece. The RPD goes on to do an analysis of the Respondent's status in Greece based on the second question in Zeng; as if at the date of the hearing the Respondent had already lost her status. The RPD found that the loss of status was voluntary as she made no substantial effort to retain or regain her status. [34] The RPD spent considerable writing explaining how and why the Respondent failed to renew her residency status in Greece, speaks about the risk factors in Greece and in Syria for the Respondent and goes on to say that the RPD has "no doubt the claimants used the female claimant's [the Respondent's] status in Greece and nationality in Syria to their advantage to manufacture a claim for protection, moreover, to produce a claim for protection by letting her status lapse."13 [35] The RPD speaks to Canada's international refugee obligations and its need to ensure these protective laws are not abused.14 The RPD goes so far as to say: "I find this claimant [the Respondent] has actively sought to put herself into a situation of becoming a refugee and in the spirit of Valentin15 I cannot agree that this is how refugees are protected, or how the refugee system is best served, or how Canadian law is protected."16 The RPD at this point should also have considered paragraph 19 of Zeng which agrees with him and with Valentin. By allowing her status to elapse and to actively seek to make herself a refugee17 goes directly against the proposition espoused in paragraph 19 of Zeng. [36] The RPD continues in its Reasons to now find that the Respondent should not be excluded and goes on to find she is a Convention refugee in accordance to section 96 of IRPA because of the chance that she may be returned to Syria and her risk there. [37] The RAD finds that the RPD did err in law when the panel decided, in spite of its correct and thorough analysis of the exclusion issue, not to exclude the Respondent and then went on to grant Convention status to her. The RPD's error was in using the date of the release of the decision in this matter to determine the Zeng assessment where it should have used the date of the hearing for that assessment. The RPD should not have done that analysis based on the Appellant's status at the time of release of the decision, even though it did so in good conscience as a result of a significant delay in issuing the decision. [38] The RAD finds that the law is clear and that the date considered in Zeng is in fact the date of the RPD hearing. That date in this case was June 21, 2013 at which time the Respondent held status in Greece as a permanent resident and was able to safely return there. The Respondent's arguments regarding conditions in Syria cannot be considered by the RAD as the basis of this appeal by the Minister is one of exclusion, which the RAD is dealing with herein. CONCLUSION [39] For the reasons clearly stated above, the RAD finds that the decision of the RPD in the case of this Respondent cannot stand and is hereby overturned. The RAD is substituting a determination that the Respondent is excluded from refugee protection in accordance to Article 1(e) of the Convention. The appeal is allowed. (signed) "David Lowe" David Lowe January 21, 2015 Date 1 IRPA, Section 110(4). 2 IRPA, Section 171(a.5). 3 IRPA, Section 110(5). 4 Respondent's Record, pp. 7-13. 5 Respondent's Record, p. 11. 6 Respondent's Record, pp. 4-5. 7 M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010; 2010 FCA 118. 8 Zeng v. Canada (Minister of Citizenship and Immigration), [2011] 4 F.C.R. 3 (F.C.A.). 9 Zeng, para. 28. 10 Zeng, para. 19. 11 RPD's Record, Reasons and Decision, para. 57. 12 RPD's Record, Reasons for Decision, para. 58. 13 RPD's Record, Reasons for Decision, para. 67. 14 RPD's Record, Reasons for Decision, para. 68. 15 Valentin v. Canada (Minister of Employment and Immigration), (1991) 3 F.C. 390 (CA). 16 RPD's Record, Reasons for Decision, para. 69. 17 RPD's Record, Reasons for Decision, para. 67. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-09533