MB8-04529

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 / Dossier de la SAR : MB8-04529 MB8-04530 / MB8-04531 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision December 28, 2018 Date de la décision Panel Paula Thompson Tribunal Counsel for the person(s) who is(are) the subject of the appeal Myriam Harbec Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The three minor Appellants, XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX, citizens of the United States, appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The appellants are minor children, aged 2, 5 and 7, born in the United States to Sudanese parents. Their parents' claims for refuge protection were accepted by the RPD in January 2018. [2] The children argue that they would face a risk of cruel and unusual treatment were they to be removed to the United States and separated from their parents. They maintain that the RPD erred in finding that they would not be at risk in the United States and that the RPD erred in failing to consider the principles of family unity and the best interests of the children. [3] The children's father, XXXX XXXX XXXX XXXX XXXX, remains the designated representative for each child. DETERMINATION [4] The RAD dismisses the appeal and confirms the decision of the RPD that the children are neither Convention refugees nor persons in need of protection. ANALYSIS The separation of the family is not a relevant consideration in this appeal [5] The three children in this appeal argue that being separated from their parents would amount to cruel and unusual treatment further to section 97 of the Immigration and Refugee Protection Act (IRPA). In my view the question of the separation is not a relevant consideration because the physical separation of the children from their parents would be carried out by Canadian authorities, not by American immigration officials, the country of reference in this appeal. I can understand how disturbing the thought of removing small children from their parents is, but that separation is presumed under section 97(1) of the IRPA: "A person in need of protection is a person in Canada whose removal to their country or countries of nationality." Emphasis added. [6] The children also argue that the RPD erred in not considering the best interests of the children and the principle of family unity. In support of their argument, they note that in the past the RPD has found that separation of a child from a parent did constitute cruel and unusual punishment.1 The RPD in this case did not err and I do not agree with the earlier RPD finding cited by the children in their memorandum. [7] Consideration of children's interests and family unity is not contemplated by sections 96 and 97 of the IRPA. "As I previously indicated, the consequences of denying refugee status to the principal Applicant's dependents seems harsh at first glance. But according to the case law, there is no concept of family unity incorporated into the definition of Convention refugee, this Court having chosen to adopt a very narrow view of the definition.2" Family reunification is an objective of the IRPA but where the criteria for sections 96 and 97 of the IRPA are not met, these objectives do not allow the RPD and RAD to confer of refugee or protected person status. In this appeal the separation of the children from their parents by Canadian officials does not constitute persecution or cruel and unusual punishment as contemplated in the IRPA. The children have not established that they will be returned to the United States [8] Even if I have incorrectly interpreted the question of family separation falling outside of the purview of sections 96 and 97, for the reasons that follow I do not believe the children have established, on a balance of probabilities, that they will be separated from their parents and removed to the United States. [9] In their submissions, the children maintain that Canadian officials can remove children in their situation and they state that the RPD suggested this possibility in its reasons.3 Both parents have been granted protected status in Canada.4 The entire family lives together in Ontario. [10] As protected persons, the parents have options to secure their children's status in Canada. For instance, the parents can include their children in an application for permanent residence in Canada even if the children are themselves not protected persons.5 The ability of the Appellants to be included in their parents' permanent residence applications is not subject to any discretionary limitations. They are legally entitled to be included in this application and, subject to a screening for inadmissibility, they will be similarly entitled to permanent resident status. [11] I sent a letter to the children's counsel asking for submissions on why they believed they would be returned to the United States.6 Their submissions did not provide any further evidence on this issue beyond what was found in the RPD record, and beyond stating that the Canada Border Services Agency could remove the children and have done so in the past.7 There is no evidence before me to suggest that the Appellants, as dependents of protected persons in Canada, would be found to be inadmissible. There is no evidence in this appeal that suggests that the parents are not entitled to permanent residency status, and as a result the children have not established that they in turn would not be entitled to permanent residency status. [12] In addition, as my colleague has noted, there are other authorities who could consider the children's situation and their best interests prior to any potential removal from Canada: Various decisions rendered in Canada state that Parliament has provided other means for dependents of Convention refugees to reunite with their family members and obtain permanent resident status. In this regard, I note, among other things, the pre-removal risk assessment or humanitarian and compassionate considerations applications under section 25. These are remedies for which it is presumed that the competent authorities will take into account the best interests of the child and consider the international human rights instruments to which Canada is a signatory.8 [13] With their parents now having direct access to permanent resident applications from within Canada, I find that the children have not established, on a balance of probabilities, that they will be removed from their parents and returned to the United States by Canadian authorities. The risk of removal is, in my view, speculative and remote. The children would not face persecution or cruel and unusual treatment in the United States [14] The children argue that the trauma they would experience living in the United States without their parents is analogous to that experienced by migrant children of illegal immigrants in the United States who undergo the stress of living with parents who may be detained or deported. [15] I cannot agree with this argument. The children's parents have legal status in Canada, and, according to the arguments put forward by the Appellants, the parents would not be with the children in the United States. The children are not "child migrants," but rather American citizens without family in the United States. Regarding the alleged psychological risk to the children, I find that the situation of the children in this appeal-American citizens whose parents have legal status in Canada and are not migrants in the United States-is unlike the situation facing US-born children of "illegal" migrants. The Appellants' memorandum acknowledges this important difference.9 The arguments quote a 2016 American Psychological Association report that states "Parents' legal vulnerability, detention and deportation are strongly associated with depression, anxiety, fears ... among children." In my view the situation described in the report does not align with the status of these children and their parents. The parents of the children in this appeal are no longer seeking to immigrate to or enter the United States and there are no arguments before me related to the children's parents facing a forward-looking risk of legal vulnerability or detention in the United States. The children themselves are not migrants but American children without parents in the United States. [16] The children point out that the psychological trauma would be compounded because they are Muslim and their parents are Sudanese, from a country "banned" by the United States. I disagree. The children are not from a banned country, they are American. Their parents now have legal protected status in Canada and are not in the United States. In addition, the United States is a diverse country10 with millions of citizens of Muslim and African background. Widespread discrimination against Muslim and African Americans is a serious problem in the United States.11 Although recent years have seen some erosion of rights and freedoms in the United States, its citizens still benefit from democracy, a strong rule-of-law tradition, robust freedoms of expressions and religion.12 American children generally, and those in the care of child welfare authorities, also benefit from oversight and a protection system.13 The children have not established, on a balance of probabilities, that they would be at risk of persecution in the United States due to their religious and ethnic status, nor have they established that the United States is incapable of protecting the children if required. [17] The children argue that American child welfare authorities have failed to protect child migrants in the past.14 The memorandum references a news report stating that the United States government, "overwhelmed by the influx of thousands of children crossing the border to flee violence in Central America, failed to conduct the most basic checks on the adults entrusted with caring for the children." These failures resulted in the abuse of dozens of children.15 The facts reported in this report are disturbing, but again I find that the situations of the appellant children different from that of the children discussed in the report, namely the waves of children of Central American migrants crossing the Mexican/American border. In this appeal the children are American citizens without parents in the United States. Their parents are not migrants but have status in Canada. I do not have any evidence before me suggesting that the children or their parents would be detained for immigration purposes nor placed in reception centres. [18] Finally, even if being placed into the care of American child welfare agencies could be considered cruel and unusual treatment, I find that any risk they would face is of a generalized and non-targeted nature. Being placed in the care of children welfare authorities is what would happen to any American child without parents or family. I have no reason to believe that these children would be targeted for mistreatment, even taking into consideration their Muslim faith and African heritage as considered above. The evidence presented in this appeal does not indicate that there has been a specific threat against these children or similarly situated children. CONCLUSION [19] The RAD dismisses the appeals and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) "Paula Thompson" Paula Thompson December 28, 2018 Date 1 P-2, Appellant's Memorandum, para. 26. 2 Dawlatly v. Canada, 1998 CanLII 7952 (FC) para 15; Ammar v. Canada (MCI), 2006 FC 1041, para 15; Zheng v. Canada (Citizenship and Immigration), 2011 FC 181, paras. 23-27; Canada (Minister of Citizenship and Immigration) v. Ranganathan, 2000 CanLII 16789 (FCA), [2001] 2 F.C. 164, para 17; I also note that IRB Guideline 3 on Child Refugee Claimants states: The best interests of the child principle has been recognized by the international community as a fundamental human right of a child. In the context of these Guidelines, this right applies to the process to be followed by the CRDD. The question to be asked when determining the appropriate process for the claim of a child is what procedure is in the best interests of this child? With respect to the merits of the child's claim, all of the elements of the Convention refugee definition must be satisfied.... ." <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir03.aspx> Akinfolajimi v. Canada (Citizenship and Immigration), 2018 FC 722. . 3 P-3, Submissions from Appellants dated November 14, 2018, paras. 1 and 7. 4 RPD-1, RPD Decision, page 5, para. 10. 5 See the Immigration and Refugee Protection Regulations, specfically regulation 176(1) : An applicant may include in their application to remain in Canada as a permanent resident any of their family members. See also regulation 1(3) for the definition of a family member: (b) a dependent child of the person or of the person's spouse or common-law partner. Immigration, Refugees and Citizenship Canada manuals also instruct officers on the eligibility of dependent children, see <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/protected-persons/stage-1-eligibility.html> 6 RAD-1, Letter to Appellants from the RAD dated October 31, 2018. 7 Supra note 1. 8 X (Re), 2017 CanLII 142905 (CA IRB), para. 56; regarding the best interests of the child and family separation due to deportation, see Simoes v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15668 (FC), paras. 14-15. 9 P-2, Appellant's Memorandum. para. 20. 10 RAD-2, National Documentation Package for the United States, March 2017. Section 1.3. United States. The World Factbook; also section 13.1: United States. State of the World's Minorities and Indigenous Peoples 2016: Events of 2015. 11 Ibid. 12 Ibid. Item 2.1, United States. Freedom in the World 2017. 13 Ibid. Item 5.4 Child Maltreatment 2015. 14 P-2, Appellant's Memorandum. 15 P-2, Appellant's Memorandum, para. 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-04529 MB8-04530 / MB8-04531 RAD.25.02 (September 18, 2018) Disponible en français RAD.25.02 (September 18, 2018) Disponible en français