MB8-14109

RAD File No. / No de dossier de la SAR : MB8-14109; MB8-14110 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision August 6, 2020 Date de la décision Panel Me Julie Corry Tribunal Counsel for the persons who are the subject of the appeal Me Claudette Menghile Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX XXXX (the appellants) are minor children and US citizens. [2] The appellants came to Canada to claim refugee protection with their mother, XXXX XXXX, who is a Haitian citizen. Their refugee protection claim was rejected by the Refugee Protection Division (RPD). [3] Their mother's appeal to the Refugee Appeal Division (RAD) was then found to be inadmissible. The RAD decided that it did not have the jurisdiction to hear their mother's appeal because she fell within the exception set out in paragraph 110(2)(d) of the Immigration and Refugee Protection Act (IRPA) pursuant to section 159.5 of the Immigration and Refugee Protection Regulations (the Regulations) concerning the Canada-US Safe Third Country Agreement. [4] However, the appellants were born in the United States and did not fall within this exception. Accordingly, the RAD only has jurisdiction to hear the appeal of the appellants. [5] The RPD had named XXXX XXXX as the designated representative of her two minor sons, who are the appellants in this case, and she is still the designated representative in this appeal. [6] The appellants' refugee protection claim before the RPD was based on the facts alleged by their mother, including her fear toward Haiti. [7] There is no allegation of fear toward the United States, but the appellants' mother stated before the RPD that her children were minors and should stay with her because there is no one in the United States to take responsibility for them. DETERMINATION [8] I dismiss the appeal. [9] I am of the opinion that the RPD did not err in concluding that the appellants' mother failed to express a fear that they would be subject to a serious possibility of persecution pursuant to section 96 or to risks pursuant to subsection 97(1) of the IRPA, in the United States, the appellants' country of citizenship. Its decision is correct. ROLE OF THE REFUGEE APPEAL DIVISION [10] In analyzing the RPD's decision, I am required to review the evidence in order to determine whether the RPD erred with regard to each error alleged by the appellants, in questions of law, fact or mixed fact and law. In this analysis, I have applied the correctness standard of review, as established in Huruglica.1 [11] I may defer to the RPD if I find that it had a meaningful advantage in assessing credibility. In this exceptional case, I will explain how the RPD enjoyed a meaningful advantage. ANALYSIS [12] The RPD noted that the appellants are US citizens and that their mother did not make any allegations against the United States regarding her sons in their Basis of Claim Forms. At the hearing, she mentioned that she did not want to be separated from her sons. [13] The RPD stated that it did not have the humanitarian and compassionate jurisdiction in this regard and that its jurisdiction was limited to determining whether there was a serious possibility that the appellants would be persecuted in the United States within the meaning of section 96 of the IRPA or whether they would be personally subject in the United States to a danger of torture, a risk to their lives, or a risk of cruel and unusual treatment or punishment within the meaning of subsection 97(1) of the IRPA. [14] In addition, the RPD noted that the Federal Court of Canada has ruled that the separation of family members does not in itself constitute persecution within the meaning of the Convention or a risk within the meaning of the IRPA.2 [15] Given all this, the RPD concluded that the appellants were not "Convention refugees" or "persons in need of protection." [16] Consequently, the RPD was of the opinion that it did not have to conduct an analysis of the appellants' risk in Haiti. [17] In their appeal memorandum, the appellants argue that the RPD erred in law by determining that their separation from their mother did not amount to persecution without considering whether it amounted to cruel and unusual treatment pursuant to section 97. [18] They submit that no issues of credibility were raised in their case. [19] The appellants state that their mother is not admissible to the United States, and that they could potentially find themselves in the foster care system in the United States. [20] The appellants also argue that the RPD did not properly consider the best interests of the children in its analysis, citing article 3 of the Convention on the Rights of the Child (CRC).3 [21] They submit that the separation of a child from their parent is traumatic and harmful to that child's intellectual and emotional development. According to the appellants, it constitutes cruel and unusual treatment or punishment pursuant to paragraph 97(1)(b) of the IRPA. [22] The appellants argue that the best interests of the child are always and unquestionably not to be separated from their parent; they cite article 9 of the CRC.4 [23] Finally, the appellants state that the only way for them not to be separated from their mother would be to return with her to Haiti, but that the RPD has not ruled on their fear of persecution in Haiti. [24] For my part, I agree with the RPD that, once it had determined the appellants were not "Convention refugees" or "persons in need of protection" with regard to the United States, it did not need to proceed with an analysis of the appellants' risk in Haiti. [25] Moreover, I am of the opinion that the appellants have the burden of demonstrating that they are "Convention refugees" or "persons in need of protection" as regards the United States, regardless of the concept of family unity.5 The evidence on the record indicates that the appellants' designated representative stated that she did not allege any fears for her sons as regards the United States, other than not wanting to be separated from them. [26] As concerns the appellants' argument that the separation constitutes a risk of cruel and unusual treatment or punishment pursuant to paragraph 97(1)(b) of the IRPA, I do not agree. [27] I understand that the idea of separating a child from their parents is deplorable, but in this case it is premature to state that a separation will take place. I cannot predict what the next steps for the appellants and their mother will be. [28] It should be noted that the IRPA does not give the RPD or the RAD the authority to make decisions based on humanitarian and compassionate considerations. [29] There is more recent case law that confirms these points, also cited by the RPD: 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, at paragraphs 15 and 17; Jawad v. Canada (Citizenship and Immigration), 2012 FC 1035, at paragraph 10; Canada (Citizenship and Immigration) v. Ali Khan, 2005 FC 398, at paragraph 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, at paragraph 15).6 [30] Finally, regarding the best interests of the child, the Federal Court stated that it is clear that this consideration cannot influence the answer with regard to whether a child is a refugee, but it is central to the procedure by which to reach a decision. Moreover, it is not necessary for the best interests of the child to be a consideration in every decision made under the IRPA, as they are to be considered under section 25 of the IRPA.7 CONCLUSION [31] I conclude that the RPD did not err in determining that XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX are not refugees or persons in need of protection. Its decision is correct and is confirmed by this decision, for the same reasons. [32] The appeal is dismissed. (signed) Julie Corry Julie Corry August 6, 2020 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at paras 78, 98 and 103. 2 Nazari v. The Minister of Citizenship and Immigration, 2017 FC 561, para. 17 ; De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, para. 97. 3 Convention on the Rights of the Child, Can. T.S. 1992 No. 3, article 3. 4 Ibid, article 9. 5 Garcia Garcia v. Canada (Citizenship and Immigration), 2010 FC 847, at para. 15. 6 Nazari v. Canada (Citizenship and Immigration), 2017 FC 561, para. 20. 7 Kim v. M.C.I., 2010 FC 149, paras. 6, 63-64. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-14109; MB8-MB8-14110 RAD.25.02 (April 4, 2019) 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 4, 2019) Disponible en français