TC0-04526

RAD File / Dossier de la SAR : TC0-04526 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 24, 2021 Date de la décision Panel T. Cheung Tribunal Counsel for the person who is the subject of the appeal Nicholas Owodunni Conseil de la personne en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This appeal is dismissed. The Appellant, XXXX XXXX XXXX, a citizen of Nigeria and the United States,1 is the accompanying minor of his mother, XXXX XXXX XXXX XXXX. The Appellant's mother is his designated representative. Background [2] The Appellant, his mother, and his siblings made refugee claims based on the mother's sexual orientation and the fear of female genital mutilation (FGM). The claims were accepted by the RPD, except for the Appellant's claim, which was rejected because he was born in the U.S., and there was no persuasive evidence adduced to establish that he needs protection pursuant to section 96 or 97(1) of the Immigration and Refugee Protection Act (IRPA) if he is to return to the U.S. The Appellant's arguments at the Refugee Appeal Division (RAD) [3] Born on XXXX XXXX XXXX2009, the Appellant is 11 years old. The Appellant argued that the RPD overlooked the fact that the Appellant would not be able to survive in the U.S. without his mother or other family members. The Appellant argued that the RPD's negative decision did not consider the best interests of the child as required by Baker.2 Consideration of the best interests of the child entails the examination of the child's particular circumstances with the understanding that children may experience greater hardship than adults in a comparable situation. Hence, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult may entitle a child to relief. The Appellant argued that notwithstanding that the Appellant's RPD counsel conceded to having no fear of persecution in the U.S., the Appellant should be granted refugee protection as he made the claim under his mother.3 DECISION [4] The appeal is dismissed. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [5] The Appellant submitted an affidavit sworn by his mother on February 24, 2020 which needs to be admitted as new evidence before it can be considered as part of the appeal. [6] I reject the affidavit pursuant to section 110(4) of IRPA as it contains no new evidence that arose after the rejection of the claim.4 The affidavit merely contains the arguments found in the Memorandum of Law and Argument, the allegations in the Basis of Claim (BOC), and the RPD evidence as exhibits. Notwithstanding the affidavit was submitted after the issuance of the RPD reasons, the Appellant's Written Statement, pursuant to RAD Rule 3(3)(d), states that no new evidence is presented in this appeal. The Memorandum of Law and Argument makes no arguments concerning the new affidavit, and the Appellant has provided no explanation as to why the affidavit evidence was not reasonably available prior to the rejection of the claim by the RPD. ANALYSIS [7] I disagree with the Appellant's argument that that the RPD erred in not considering the best interests of the child as required by Baker.5 The jurisprudence in Baker discussed the principle of the best interests of the child in the context of a humanitarian and compassionate grounds analysis which has no application in the refugee determination regime.6 [8] Binding international human rights instruments are determinative of how the IRPA must be interpreted and applied. Where children are involved in the refugee determination process, the IRPA is to be construed in a manner that complies with the Convention on the Rights of the Child (CRC).7 The RPD and the RAD are bound to apply Guideline 3: Child Refugee Claimants (the Guidelines) whenever a minor child is the subject of refugee determination. The Guidelines do not change the substantive aspects of refugee determination for children, and the same test in refugee determination applies to adults and children alike.8 The Guideline adds nuances to the determination of the subjective fear of persecution by recognizing that "children have distinct rights, are in need of special protection, and can be persecuted in ways that would not amount to persecution of an adult." The particular vulnerabilities of children must be considered in assessing the elements of the Convention refugee definition.9 [9] I disagree with the Appellant's argument that the inability to survive in the U.S. without his mother or other family members is a sufficient basis for protection under sections 96 or 97(1) of IRPA. The separation of family members is not an independent ground of persecution for the purposes of IRPA. Although the outcome may be harsh, the living arrangements of minor refugee claimants upon their return to their country of citizenship are not relevant considerations, if the minors do not face persecution, torture, risk to life, or risk of cruel and unusual treatment or punishment by an agent of harm.10 [10] Having considered the jurisprudence, the Guidelines, and the Appellant's admission that he has no fear of persecution in the U.S., I find the Appellant is neither a Convention refugee nor a person in need of protection. CONCLUSION [11] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) T. Cheung T. Cheung March 24, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 5, Basis of Claim Form, p.18. 2 Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817. 3 Exhibit P-2, Appellant's Record, Memorandum, pp. 96 to 97. 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 110(4). 5 Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817. 6 Solis Mendoza v. Canada (Citizenship and Immigration), 2021 FC 203 (CanLII). 7 Section paragraph 3(3)(f) of the Immigration and Refugee Protection Act (IRPA); Kim v. Canada (Citizenship and Immigration), 2010 FC 149 (CanLII), para. 53; De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, paras. 73 and 87. 8 Immigration and Refugee Board of Canada, Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, Guidelines issued by the Chairperson pursuant to s.65(3) of the Immigration Act, Effective Date: 30 September 1996. 9 Kim v. Canada (Citizenship and Immigration), 2010 FC 149, paras. 55 to 61. 10 Liu v. Canada (Citizenship and Immigration), 2010 FC 819, para. 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-04526 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