MC0-08538

RAD File / Dossier de la SAR : MC0-08538 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 12, 2020 Date de la décision Panel Jillan Sadek Tribunal Counsel for the person who is the subject of the appeal Melissa Singer Conseil de la personne en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX XXXX, is a three-year-old child. He is a citizen of Nigeria and of the United States of America. [2] On March 4, 2020 the Refugee Protection division (RPD) determined that the Appellant's mother and Nigerian siblings met the definition of Convention refugees. The RPD also determined that the Appellant, having US citizenship, had not established a claim against the United States. [3] The Appellant argues that the RPD erred as it did not provide sufficient reasons to reject his claim and because his claim ought to have been assessed within the "purview of the family unit".1 [4] My role is to look at all the evidence and decide if the RPD made the correct decision.2 DECISION [5] 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. ANALYSIS [6] I have carefully reviewed the entire record, including the transcript of the RPD hearing. I find the determinative issue is the lack of an objective basis on which to find that the Appellant would be at risk in the United States. [7] In his memorandum, the Appellant's only argument is that the RPD provided insufficient reasons to reject his claim and that he "is at risk if repatriated to the United Stats and he must be viewed under the purview of the family unit."3 [8] The Appellant's mother's and siblings' claim was accepted on the basis of the domestic abuse they suffered at the hands of the Appellant's father in Nigeria. [9] The Appellant's Basis of Claim (BOC) form did not include any allegations against the United States. Like his siblings, his claim relied only on the allegations of abuse put forward by his mother. I do note that in his mother's narrative, she states: "I refused to stay in the U.S.A because the father of my children travels to the U.S.A. often."4 [10] During the hearing, the Appellant's designative representative, his mother, was asked what she feared for her son should he be returned to the US. The Appellant's mother and 18-year-old sister provided the following evidence: MEMBER: Do you fear for any danger to your son's life in the USA, if he returned to the USA because he is an American Citizen. Do you fear anything would happen to your son if he returned to the USA? PRINCIPAL CLAIMANT: Yes. MEMBER: What do you fear would happen to your son? PRINCIPAL CLAIMANT: XXXX...XXXX cannot go back to Nigeria because... ADULT CLAIMANT: No, she is talking about USA. MEMBER: No, to the USA? COUNSEL: The United States. PRINCIPAL CLAIMANT: That if he goes to the United States? Please can you repeat again? MEMBER: Your son is an American Citizen. Do you fear that anything would happen to him if he returned to the USA? PRINCIPAL CLAIMANT: If my son returned to the US? MEMBER: Yes. PRINCIPAL CLAIMANT: Actually, my son cannot return to the US while I am here in Canada. I will prefer my son to be here with me and also in the US already my son's social security they have already...he forcefully took it from me, which they are using. I don't know if they are still using it, but he forcefully took the social security number from me when I got back to Nigeria. MEMBER: Okay, but do you fear that anything would actually endanger his life in the USA, anyone would harm your son in the USA? PRINCIPAL CLAIMANT: Yes because he normally goes to the US and also his stepbrothers they are all there in the US, so that's why I don't want my son to go to the US. MEMBER: And do you have...besides his stepbrothers I don't understand why you fear that he would be harmed in the USA just because he has stepbrothers in the USA. PRINCIPAL CLAIMANT: No, the father...also the father, if the father cannot get me the father can get my son. He is very influential. MEMBER: He can get your son how? How can he get your son in the USA? PRINCIPAL CLAIMANT: My...because the father is like, I don't know he is all over the place, and because of that his social security number that they forcefully took from me I feel my son is not that safe there. ADULT CLAIMANT: Can I say something? MEMBER: Yeah, go ahead XXXX. ADULT CLAIMANT: Did you understand, she is trying to say that if XXXX goes to the USA, is it that someone is going to kill him or anything or is he safe because he is a USA citizen, that's what she is asking. Do you understand? PRINCIPAL CLAIMANT: Yes. MEMBER: Do you want to answer the question XXXX, what do you think would happen to your brother if he returned to the USA. Do you think that he would be harmed? ADULT CLAIMANT: My brother, I don't think he is going to be harmed because I don't know the security here is okay and in the States, he is an American citizen and is good too, but I have stepbrothers and sisters there so I will say it's better for him to go when he is a little big like more matured enough to like save his brothers and sisters because I don't know.5 [11] In terms of the Appellant's submission that the RPD did not provide sufficient reasons, I disagree. On the basis of the very scanty evidence before the RPD, I find that the RPD's reasons were appropriate. In its oral decision, the RPD stated: "The claim of XXXX XXXX XXXX is rejected as the principal claimant has said that she fears he would face serious harm in the U.S.A. if the agent of persecution can find XXXX XXXX in the U.S.A., however, I find this to be mere speculation on behalf of the principal claimant. And given that he is an American citizen, and in analyzing the rest of the evidence in the claim, I find that XXXX XXXX XXXX does not face a serious possibility of persecution in the U.S.A. nor on a balance of probabilities, a risk of serious harm or death to his life in the U.S.A."6 I agree with the RPD that there is insufficient evidence that the Appellant's father would be able to locate and harm the Appellant in the United Sates and that the state would be unable to protect him. [12] In terms of the Appellant's argument that his claim should be assessed in the context of the family unit, the Federal Court continues to confirm that family unity is not a concept that exists in Canadian refugee law.7 The Federal Court has stipulated that "While Canadian immigration laws may strive to facilitate family unity in certain circumstances such as those contemplated by section 25 of the IRPA, Canadian refugee law does not recognize any fundamental right for refugee claimants to live together (Chavez Carrillo v Canada (Citizenship and Immigration), 2012 FC 1228 (CanLII) at paras 15, 17; Jawad v Canada (Citizenship and Immigration), 2012 FC 1035 (CanLII) at para 10; Canada (Minister of Citizenship and Immigration) v Khan, 2005 FC 398 (CanLII) at para 11). Moreover, the concept of family unity does not relieve a refugee claimant of the onus of demonstrating that he or she falls within the definition of "Convention refugee" (Garcia Garcia v Canada (Citizenship and Immigration), 2010 FC 847 (CanLII) at para 15)."8 [13] I note that there are other facilitative mechanisms in the Immigration and Refugee Protection Act which the Appellant may take advantage of and through which he may acquire permanent residence, but that the refugee protection system is not designed for this purpose. [14] I therefore find that the Appellant has not raised any arguments or presented any evidence which would lead me to conclude that the RPD has erred in any way in rejecting his claim. CONCLUSION [15] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither Convention refugee nor a person in need of protection. (signed) Jillan Sadek Jillan Sadek November 12, 2020 Date 1 P-2, Appellant's memorandum, paragraph 6, Appellant's record, p.15 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 3 P-2, Appellant's memorandum, paragraph 6, Appellant's record, p.15 4 RPD-1, Mother's narrative, RPD record, p.37 5 RAD-1, Transcript of the hearing before the RPD, March 4, 2020, p.33-34 6 RPD-1, RPD's reasons, RPD's record, pp. 5-6 7 Canada (Minister of Citizenship and Immigration) v. Khan, 2005 FC 398 (CanLII), para. 11. 8 Nazari v. Canada (Citizenship and Immigration), 2017 FC 561 (CanLII), para. 20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-08538 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