MB8-19526

RAD File / Dossier de la SAR : MB8-19526 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 Montréal, Québec Appel instruit / entendu à Date of decision June 25, 2019 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the person who is the subject of the appeal XXXX XXXX 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 citizen of Turkey. His father, XXXX XXXX, and his mother, XXXX XXXX XXXX XXXX, citizens of Turkey, were granted refugee status by the Refugee Protection Division (RPD). The Appellant alleges that he fears returning to the United States (US) because of the anti-Muslim sentiment of the current administration, and because he cannot live there without his parents. [2] The RPD dismissed the Appellant's refugee claim, even though it allowed that of his parents. The RPD found that Muslims in the US were indeed subject to anti-Muslim sentiment but it was insufficient to amount to persecution. The RPD also found that the Appellant, as a US citizen, can count on adequate State protection in his country of nationality. [3] The Appellant argues that he is the only child in the family and as a 17-year-old, he is still a minor. Given that he does not have a refugee status or protected person status in Canada, he cannot pursue his studies in Canada. His parents cannot live in the US as they do not have status in Canada, and he cannot live there alone; nor can he live in Turkey where he risks persecution. [4] I have conducted an independent assessment of the evidence, including the Refugee Appeal Division (RAD) record and the RPD record, which includes the audio recording of the hearing at the RPD. DECISION [5] The appeal is dismissed. The RPD and the RAD have a very restrictive mandate that is limited to determining whether each refugee claimant has refugee status or protected person status, depending on their own personal circumstances and country of nationality. There are mechanisms in the Act1 that allow the preservation of the family unit and could allow the Appellant to avoid being removed to the US, but they are not within the purview of the RAD. ANALYSIS The RPD's assessment of persecution and risk in the US [6] The Appellant did not challenge the RPD's conclusion that he would not face a serious possibility or persecution or a personalized risk in the US, or the RPD's finding that he would benefit from adequate state protection in that country. I see no reason to overturn these findings and I find that the RPD's decision on this issue is correct. The Appellant's arguments regarding status and family separation [7] The Appellant's arguments can be summarized as a request that the RAD allow him refugee or protected person status in order to preserve family unity. However, it has been stated numerous times by our Federal Court that the concept of family unity does not exist in Canadian refugee law: "Family unity is not a concept that exists in Canadian refugee law. In effect, this specific issue was discussed in Casetellanos v. Canada (Solicitor General) 1994 CanLII 3546 (FC), [1995] 2 F.C. 190 (T.D.). After reviewing section 181 and following of the Handbook on Procedure and Criteria for Determination of Refugee Status, this Court held that the definition of Convention refugee to which Canada subscribes by virtue of it being a signatory of the United Nation Convention Relating to the Status of Refugees (Geneva, July 28, 1951) does not incorporate the concept of family unity. This did not change when Parliament adopted the Act. As pointed out in Pour-Shariati v. Canada (Minister of Employment and Immigration), [1997] F.C.J. 810 (C.A.) (QL), Parliament did consider the issue referred to in this handbook by providing for the landing of dependants of persons to whom refugee status has been granted, in sections 175 and following of the Immigration and Refugee Protection Regulations SOR/2002-227."2 [8] This has been reaffirmed in recent case law. Although Canadian immigration law aims at facilitating family unity in certain circumstances, the Appellant has the onus of demonstrating that he falls within the definition of Convention refugee or protected person, regardless of family unity: "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)."3 [9] I therefore do not have the power to grant the Appellant refugee or protected person status based on the fact that he does not wish to be separated from his parents. I also cannot determine if the Appellant will be removed, or to which of his countries of nationality he would be removed, as that is also outside of the mandate of the RAD. [10] I note, based on the above-mentioned case law as well as the Act and its Regulations,4 the Appellant has access to other recourses with other administrative authorities who have the responsibility of ensuring family unity and the protection of the best interest of the child. For example, the Regulations provide that a refugee or a protected person may present an application for permanent residence, in which they may include any member of their family.5 This means that the Appellant can apply for permanent residence as a dependent of his mother and father without necessarily being recognized as a refugee or a protected person. CONCLUSION [11] After reviewing the entirety of the record and considering the Appellant's arguments, I conclude that the RPD has committed no errors in determining that the Appellant is not a refugee nor a protected person. The RPD's decision is correct. [12] The appeal is dismissed. Zofia Przybytkowski Me Zofia Przybytkowski June 25, 2019 Date /ag 1 Immigration and Refugee Protection Act (the Act). 2 Canada (Minister of Citizenship and Immigration) v. Khan, 2005 FC 398 (CanLII), para. 11. 3 Nazari v. Canada (Citizenship and Immigration), 2017 FC 561 (CanLII), para. 20. 4 Immigration and Refugee Protection Regulations (the Regulations). 5 Subsection 176(1) of the Immigration and Refugee Protection Regulations: 176 (1) An applicant may include in their application to remain in Canada as a permanent resident any of their family members. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-19526 RAD.25.02 (April 04, 2019) Disponible en français 3 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