TB8-23490

RAD File / Dossier de la SAR : TB8-23490 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 15, 2019 Date de la décision Panel D. Goff Tribunal Counsel for the person who is the subject of the appeal David Matas 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 XXXX XXXX a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He asks the Refugee Appeal Division (RAD) to refer the matter back to the RPD for redetermination. He has not provided new evidence in support of his appeal. He has not requested an oral hearing. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act")1, the RAD confirms the decision of the RPD finding the appellant excluded from protection pursuant to section 98 of the Act, as it incorporates Article 1E of the United Nations Convention Relating to the Status of Refugees (the "Refugee Convention").2 The RAD further confirms the decision of the RPD that the appellant is a not Convention refugee pursuant to section 96 of the Act, nor is he a person in need of protection pursuant to section 97 of the Act. BACKGROUND [3] In August 1993, the appellant relocated to the United States (US), as his claim for asylum was accepted. In 1995, the appellant acquired a Green Card. [4] In June 2017, the appellant entered Canada at an unofficial border crossing in Winnipeg thereby eluding the official port of entry. Upon questioning by Canadian officials, the appellant initiated a claim for refugee protection against Somalia. [5] The Minister of Immigration, Refugee and Citizenship Canada intervened arguing the appellant was excluded from protection due to his Lawful Permanent Resident status in the US.3 The Minister further submitted the appellant had not lost his status in the US and as such, had the right to return and reside in the US. [6] The appellant's hearing was heard on June 19, 2018. In an oral decision on that date, the appellant's claim for protection was rejected. The determination issue was exclusion. [7] The appellant argues the RPD erred because it failed to consider that he left the US with the intention of abandoning his status there. [8] The RAD is not persuaded the RPD erred. The RPD correctly determined the appellant was excluded from protection pursuant to Article 1E of the Refugee Convention. ANALYSIS Role of the RAD [9] The RAD is to review raised issues with the RPD's findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard.4 Onus is on the Appellant [10] The onus is on the appellant to provide full and detailed submissions regarding the errors he alleges the RPD made. Rule 3(3)(g) of the Refugee Appeal Division Rules5 specifically requires that an Appellant's Record must include "a memorandum that includes full and detailed submissions regarding: (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the ... [RPD's] decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the ... [RPD's] hearing...." [11] The appellant has failed to do so. Instead, the appellant has attacked the RPD's decision by resubmitting his representations already made to the RPD. The role of the RAD is not to provide the appellant a "second chance" to present his claim. [12] The RAD has nevertheless independently reviewed the evidence and addressed the appellant's arguments, as follows. The RPD Findings Exclusion - the US [13] The RPD determined the appellant was excluded from refugee protection pursuant to Article 1E of the Refugee Convention due to his lawful status as a permanent resident of the US. [14] The appellant very vaguely argues the RPD erred because he left the US with the intention of abandoning his status there. He also argues he has been out of the country for more than a year. [15] The RAD notes the appellant made the same submissions before the RPD. Nevertheless, having independently reviewed the evidence, the RAD does not agree with the appellant's arguments. In this regard, the RAD notes the Minister's disclosure package includes confirmation from American authorities that the appellant has lawful status as a permanent resident in the US and holds a green card valid until XXXX XXXX XXXX 2024. Furthermore, there was no adverse information provided that the appellant was subject to any immigration enforcement proceedings in the US or that he would not be re-admissible to that country.6 As such, the RAD finds the Minister has met their burden to establish a prima facie case that the appellant holds or held status substantially similar to that of nationals in a third country (in this case, the US). [16] The burden thus shifts to the appellant, who has failed to provide any evidence that he has lost his status in the US. The appellant has moreover not demonstrated that he has taken any steps to confirm his status and any potential renewal concerns with any officials or legal authorities etc. Accordingly, in the circumstances of this claim, the appellant has not demonstrated that his status has been lost or expired i.e., the appellant's green card is valid until 2024. The RAD nonetheless also notes the very recent decision in Desir v. Canada (Citizenship and Immigration) 2019 FC 1164, which addresses the appellant's argument that he left the US with the intention to abandon his status. The Court in Desir determined: Mr. Justice Paul Rouleau held in Canada (Minister of Citizenship and Immigration) v Choovak, 2002 FCT 573 at paragraphs 15 and 17 that a claimant's choice to allow his or her status in a third country to expire amounts to an impermissible form of asylum shopping. The Federal Court of Appeal confirmed in Zeng that the reason why a claimant lost their status also remained a valid factor to be considered and weighed by the RPD in reaching its decision. The Court also stated at paragraph 39 that it is reasonable for the RPD to consider what steps the foreign national may or may not have taken in order to prevent the loss of status in the third country. It is well-established that a refugee claimant has the burden of proof in showing, on a balance of probabilities, the validity of the allegations on which his or her claim is based. I conclude that a similar burden rests on a claimant who has caused their permanent residence status in a third country to expire to demonstrate why the status was lost and why the claimant could not have reapplied and obtained a new visa. This only makes sense. Otherwise, who else could speak to the circumstances leading to the loss of one's status or what steps, if any, one took to re-acquire status? 7 (emphasis added) [17] Finally, as noted by the RPD, the appellant made no allegations of persecution against the US. As such, the RAD finds the appellant failed to establish that he would face any risk of harm in the US or, further that there would be no state protection available to him. DECISION [18] On the basis of the findings noted above and after its own assessment of all the evidence in the record, the RAD accordingly finds that the RPD's determination is correct. [19] Pursuant to paragraph 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is excluded from refugee protection pursuant to section 98 of the Act, as it incorporates Article 1E of the Refugee Convention. [20] The appeal is dismissed. (signed) "D. Goff" D. Goff October 15, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189. 3 Exhibit RPD-1, RPD's Record, Exhibits 4-6, Minister's Notice of Intervene and Disclosure Packages, at pp. 67-89. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 Rule 3(3)(g)(i)(ii), Immigration and Refugee Board (IRB), Refugee Appeal Division Rules, SOR/2012-257. 6 See e.g.) Exhibit RPD-1, RPD's Record, Exhibit 4, at p. 78. 7 Desir v. Canada (Citizenship and Immigration) 2019 FC 1164 at para. 15-16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-23490 RAD.25.02 (April 04, 2019) Disponible en français 6 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 (April 04, 2019) Disponible en français