TC0-04808

RAD File / Dossier de la SAR : TC0-04808 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 Toronto, ON Appel instruit / entendu à Date of decision December 10, 2020 Date de la décision Panel Angus Grant Tribunal Counsel for the person who is the subject of the appeal Razgar Hasan Conseil de la personne en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant) is a citizen of Germany. He is a minor, who came to Canada in 2017 with his mother, who is his Designated Representative in these proceedings. While I have sympathy for the Appellant's circumstances, I must dismiss his appeal, as the Refugee Protection Division (RPD) did not err in rejecting his claim for refugee protection. BACKGROUND Basis of Claim [2] The Appellant is of Chaldean Iraqi background. While he was born in Germany, his parents and eldest brother fled Iraq for Germany in 2000. As noted, the Appellant came to Canada in 2017 with his mother who was found to be ineligible to make a refugee claim in Canada because of her status in Germany, pursuant to paragraph 101(1)(d) of the Immigration and Refugee Protection Act (IRPA). [3] The Appellant's claim is based on a fear that if he returns to Germany, he would be forced to do so on his own, without his mother, and where there is no one to care for him. While the Appellant's father and older brothers reside in Germany, the Designated Representative testified that they are either unwilling or unable to adequately care for him. Full details of the Appellant's claim are provided in the Basis of Claim form signed by his mother, and in the detailed summary provided by the RPD.1 The Refugee Protection Division (RPD) Determination [4] In detailed reasons, the RPD accepted that the Appellant's mother had, on a balance of probabilities, lost her status in Germany. As such, she considered the Appellant's claim on the assumption that that he could be removed to Germany without her. [5] Proceeding on this basis, the RPD considered the documentary evidence and the testimony before it and concluded that there was not an objective basis underlying the Appellant's claim that he faces a well-founded fear of persecution in Germany. Similarly, the RPD found that the Appellant had not established that he would face a personalized risk to his life or a risk of cruel and unusual treatment or punishment. [6] More specifically, the RPD found that the risk articulated by the Appellant - which focused on his separation from his mother and the possibility that he would be put into custodial care in Germany - does not meet the definition of persecution under the Refugee Convention, or the criteria set out at section 97 of the Immigration and Refugee Protection Act (IRPA). [7] Finally, while the Appellant's mother did not claim that the Appellant would face physical harm at the hands of his father in Germany, the RPD considered this possibility, given that the father had allegedly slapped him in the past. The RPD found, however, that state protection would be both adequate and available to the Appellant. ANALYSIS [8] The role of the RAD is to assess whether the RPD made the correct decision. While there may be instances that call for deference to the RPD decision, in this case, I see no reason for such deference.2 In applying this standard, and having assessed the Record, I agree with the RPD's conclusions, largely for the reasons that it provided. My reasons are as follows: [9] First, aside from bald and unreferenced assertions of racism in Germany, counsel for the Appellant has pointed to no documentary evidence that either contradicts or calls into question the RPD's factual findings. [10] The RPD noted that the Appellant had not provided evidence on the specifics of the German child protection system. More generally, however, it found that Germany "is a democracy that has human rights protections in place, respects the rule of law, has a developed economy, and maintains a social welfare system that is facing pressures, but nonetheless is functioning."3 [11] The RPD further observed that Germany has a youth welfare office and that, as a developed democracy, it would provide appropriate child welfare and protection services to the Appellant if his family in Germany was not willing to provide adequate care. I see no error in this conclusion. [12] I further find that the RPD correctly considered the Appellant's circumstances through the lens of the refugee definition. The RPD considered the prospect of the child's separation from his mother, and while it did not minimize the impact that this separation may have, it correctly concluded that this impact alone does not constitute persecution. The RPD also correctly found that this separation did not pose a risk to the young Appellant's life or constitute cruel and unusual treatment or punishment pursuant to subsection 97(1) of the IRPA.4 [13] It is trite that refugee claimants bear the burden of establishing their claims for refugee protection. As the Appellant in this case had put forward no evidence on the German child protection regime, I find that the RPD did not err in concluding that he had not established that his removal to Germany would trigger the requirements of the Canadian refugee protection regime. [14] I further note that the RPD appropriately considered the jurisprudence on family separation and correctly observed that there is no free-standing right to refugee protection arising from the prospect of family separation.5 I adopt as my own the RPD's comments on the availability of other mechanisms - most notably a 'humanitarian and compassionate' application - that may be available to the Appellant to ensure that his best interests are appropriately considered. [15] Finally, while neither the Appellant, nor the Designated Representative articulated a forward-looking fear of persecution at the hands of the Appellant's father, the RPD correctly recognized its protection obligations by considering this possibility. Having done so, I conclude that it did not err in finding that state protection in Germany would be adequate and available to the Appellant. The RPD correctly pointed to the documentary evidence on the effectiveness of protection mechanisms in Germany. It also referred to the absence of any evidence proffered by the Appellant that would call into question the willingness and ability of the German state to provide him with effective and meaningful protection. DECISION [16] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither Convention a refugee, nor a person in need of protection. (signed) "Angus Grant" Angus Grant December 10, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, Appellant's Basis of Claim form, pp.21-30 and RPD Reasons for Decision, pp.3-20. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Exhibit RPD-1, RPD Record, RPD Reasons, para. 43, p.16. 4 Ibid., paras. 46, 48, pp.17-18. 5 Ibid., para. 47, p.17, citing Nasari v. Canada (MCI), 2017 FC 561 at para. 20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-04808 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